updated 7/7/2006 1:11:47 PM ET 2006-07-07T17:11:47

Guests: Geoffrey Fieger, Brian Wice, Ana Marie Cox, Katrina Szish, Emily Smith, Rick Ross, Charmaine Yoest

JOE SCARBOROUGH, HOST, SCARBOROUGH COUNTRY:  Hey, good evening, Keith. 

Thank you so much.

And right now, in SCARBOROUGH COUNTRY, Ken Lay beats the rap—by dying.  Now that the feds have dropped the case, will his wife walk away with his millions?

Then, is it Scientology run amok, or a greedy dad milking magazines for big bucks?  Why Tom Cruise is refusing to let anybody see TomKat‘s baby, and why Americans are obsessed with the multimillion dollar business of Hollywood babies.

And new rules for couples written by couples.  It‘s called the “new monogamy,” but most would call it old-fashioned cheating.  So, why is spouse-sanctioned cheating gaining popularity?

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

We have those stories straight head.  But first, Ken Lay is dead. 

Still, but some are skeptical.

The “New York Post” suggested that the feds check Cheeto Lay‘s coffin before it goes underground, just to make sure the former Texas tycoon isn‘t pulling a fast one on the government or his former shareholders.

Now, Kenny boy Lay, who died before he spent a day in prison, was found guilty on numerous crimes last month.  And the government filed a request to Lay to pay $43 million in fines for his illegal conduct.

But friends, with the case dropped due to Ken Lay‘s death, chances are good that his wife and family will now keep their penthouse condo and $6.3 million in separate assets.

While many around our office suggested that the poor wife has suffered enough—and I‘m sure she has—and they also suggested she should be able to keep her money, I just wonder if we would show a bank robber‘s spouse such courtesy.  And if we were eager to take Mr. Lay‘s ill-gotten gains away from him while he was still alive, why wouldn‘t we go after Mr. Lay‘s ill-gotten gains after he died?

Should his wife—I think there‘s a—this is the bottom line question.  Should his wife profit from illegal activities that were going to send her husband to jail for the rest of his life, had he not dropped dead yesterday?

Now remember, this is the same man who wiped out more than 5,000 jobs and $1 billion in employee pensions virtually overnight.  And that doesn‘t even include the hundreds of thousands of Americans who lost their own retirement by investing in the company that he was the biggest cheerleader of.

Let‘s bring in right now Brian Wice.  He‘s one of the top criminal defense attorneys in Texas.  Also, trial attorney Geoffrey Fieger.

Geoffrey, let me begin with you.  Why not aggressively go after all of the Lays‘ millions, even if they‘re now being held by Mrs. Lay, instead of Mr. Lay?

GEOFFREY FIEGER, TRIAL ATTORNEY:  Well, the short answer, Joe, is one, you can‘t, and two, it‘s not worth it.

You can‘t, because he‘s been—in effect, the criminal charges are gone, and you can only pursue civil charges.  And she‘s going to get a lot of the money through the probate courts, regardless of what anybody does.

Secondly, it‘s not worth it.

SCARBOROUGH:  All right.  But again, most Americans out there have got to be saying, if Ken Lay got his penthouse, got his millions of dollars illegally.  Shouldn‘t it somehow go back to the people that he defrauded?

FIEGER:  Well, she‘s going to get half no matter what.  But I don‘t think there‘s that much there.

You‘re talking about their family residence, and I think you‘re talking about an investment that‘s been estimated at about $6.3 million that he put into annuities back before there was ever an inkling of trouble.  And there‘s no showing that that was ill-gotten gain.

In any event, she‘s going to get it.  If that‘s what it is, she‘s going to get at least half.

But the more important question is, it‘s too little.  In terms of the losses suffered, like you indicated, billions of dollars—billions of dollars—any collection attorney worth his or her salt is not going to bother with that when there‘s big pockets out there.  Nobody‘s going to go after a couple million dollars.  It‘s not worth it.

SCARBOROUGH:  So, Brian—let me ask you, Brian.  First of all, I think it has been proven that these gains were ill-gotten.

But talk about the people Ken Lay hurt and whether you believe this death should wipe the slate clean, because, after all, the feds admitted today, they‘ve got no case.  They have dropped this case.  So, it‘s as if Ken Lay had never been convicted.

BRIAN WICE, CRIMINAL DEFENSE ATTORNEY:  Well, you know, Joe, it wasn‘t enough for Ken Lay to walk away from a criminal conviction with his death, because the slate is wiped clean.  And so now, in death, he always is like he was in life—absolutely not guilty.

But look, at the end of the day, I can assure you that the feds are coming after that money like a pit bull with a bone in its mouth.  Why?  Because they know that in a civil forfeiture case, unlike a criminal forfeiture, the burden is going to be on Ken Lay‘s people to show that Ken Lay wasn‘t guilty, and that those weren‘t the proceeds...

SCARBOROUGH:  All right.  But Brian, Geoffrey just said, though, they can‘t go after the money.

WICE:  No.

SCARBOROUGH:  And that it‘s too little money to go after of anyway.

WICE:  First of all, does that mean we don‘t try?  Look, I can assure you that, if this law works when we go after dope dealers and we go after wise guys, Ken Lay, Joe, was a thug in a blue suit.

I watched this trial for four months, and I watched this allegedly good guy, grandfatherly figure start channeling Joan Collins and Richard Nixon in the time that it took “Basic Instinct 2” to go to video.

This was a man who was nothing more than a white collar gangster.  And I can assure you that the Enron task force—some of the best lawyers in the free world—are going to make sure that Linda Lay gives up the money that belonged to the victims of Enron‘s implosion.

SCARBOROUGH:  So, Geoffrey, can shareholders still sue Mrs. Lay to get back some of the money they lost from her husband‘s acts of fraud?  Or do we know that there are certain things that she‘s going to keep?

Like, for instance, chances are good she‘s going to be in that penthouse condo for the rest of her life, right?

FIEGER:  She‘s going to keep the homestead.  That‘s the major asset.  And she‘s going to keep the variable annuities, which I understand is the other major asset.

It is absolutely immune from creditors.  And regardless of what anybody thinks otherwise, she‘s going to be able to keep those.

And also, they‘re not going to be able to sue her.  They can only sue his estate.

So, the only thing that anybody‘s ever going to get is things that go into his estate that are available to creditors.  And she is going to take a significant portion, and it‘s never going to go into her estate.

And let me say again, they‘re not going to waste their time.

Your other guest is wrong when they say, well, the prosecutors just go after wise guys.  They don‘t.  They didn‘t go after Gotti‘s assets.  Mrs.  Gotti wasn‘t put into the poor house.  They don‘t go after...

WICE:  Yes, but Geoff, Geoff, Geoff.  Linda Lay has a lot more money than Mrs. Gotti did.  And I can assure you...

FIEGER:  I‘m not sure of that.

WICE:  Well, let me tell you.  First of all, the homestead exemption in Texas, Joe, as I understand it, won‘t shield that from forfeiture by the feds.

And when Geoff, for whom I have the utmost respect as a litigator, doesn‘t understand the people on the Enron task force.  These are the best and the brightest that the DOJ has to bear.  And I‘m telling you, they are not going to lay down.

They have already moved to seize the multimillion dollar penthouse that the Lays had—one of the toniest, trendiest, most expensive high-rises in the free world.  And I can assure you that they are going to come loaded for bear.

SCARBOROUGH:  All right.  Brian, thank you so much.  Geoffrey Fieger, as always, thanks for being here.

And, you know, friends, I‘ve got to tell you.  When the feds come after you, they don‘t let go.  And so, I think it may be tough for Mrs.  Lay.

But I want you to go to our Web site right now and answer the question: Should the federal government continue to go after Ken Lay‘s millions, even though he died?

To vote, just go to Joe.msnbc.com and click, and we‘ll have the results at the end of the show.

And now, from Houston to D.C., Delaware Senator Joe Biden is a three-term senator, one of the Democratic Party‘s leading voices and maybe even a presidential candidate in 2009 -- or, perhaps not.

Biden, who has dogged by gaffs in his political past is now drawing unwanted attention for a slur he recently made against Indian Americans.  Take a listen.

(BEGIN VIDEO CLIP)

JOSEPH BIDEN, U.S. SENATOR, D-DELAWARE:  In Delaware, the largest growth in population is Indian Americans, moving from India.  You cannot go to a 7-Eleven or a Dunkin‘ Donuts unless you have a slight Indian accent.  I‘m not joking.  Oh, it‘s gigantic.

(END VIDEO CLIP)

SCARBOROUGH:  What was he thinking?

Let‘s bring in “Time” magazine columnist Ana Marie Cox.  She‘s the author of the book “Dog Days.”

Ana Marie, what the heck was Joe Biden thinking?

ANA MARIE COX, TIME MAGAZINE COLUMNIST:  Well, I think we‘d all like to know that.  And perhaps he‘d recently watched some “Simpsons” episodes or something, maybe Apu is his favorite character.

I think, actually, what‘s really interesting here is that Biden was trying to pander.  He was really trying to say something nice about the Indian American community.

Of course, he might have—if he really wanted to do that—he might have said something like, you can‘t get an engineering degree without an Indian accent in this state.

Unfortunately, what he sounded like he was saying is something quite different.  Although I‘m not sure it could qualify as...

SCARBOROUGH:  Like you said, I mean, that—the whole 7-Eleven, Dunkin‘ Donuts joke has been a punch line on “The Simpsons” now for 12, 13 years.  I would think some Indians might be insulted that they would be associated with selling beef jerky behind the counter of 7-Eleven.

So, let‘s expand it out and talk about Joe Biden generally.  This is a guy that I like very much.  He‘s a centrist from Delaware.  But he does have a history of these kind of gaffs, doesn‘t he?

COX:  Well, he tends to exaggerate.  And, of course, most famously, he plagiarized a speech by a Labor candidate—a British Labor candidate.

And I think also, I have to say that this particular gaff, I‘m not sure if it will actually haunt him in the same way, let‘s say, that Ted Stevens‘ explanation of the Internet as being a series of tubes earlier this week will haunt him.

I think, for a gaff to count, it either has to be hilariously right or hilariously wrong.

For instance, in this case, as you probably know, Michael Kinsley once said a gaff is when a politician accidentally tells the truth.

Biden didn‘t even really get the truth right on this.  I mean, his stereotype of Indians—it‘s actually that they‘re behind the counter, not walking into the door.

So, if he‘d said that, if he‘s like said an uncomfortable truth that sounds slightly offensive that is true, but none of us want to admit it, I think it would stick to him longer.  I‘m actually not sure if this is going to do it.

I think there other reasons that Joe Biden might not be successful, but I‘m not sure if this is going to be it.

SCARBOROUGH:  And again, it goes to the question of Ted Stevens talking about the Internet that way.  And here you have Joe Biden making a statement that most middle Americans would wince at, saying he just doesn‘t get it.

And I think we said at the top he‘s a three-term senator.  He‘s actually a six-term senator.  He was elected when he was 29 years old and he‘s been there for a very long time.

Does it prove that he and other senators are just isolated?  Like George Bush.  Remember that 1992 episode, where they were showing him the scanner in the grocery store—a gaff that did have resonance?

COX:  Well, again, also that‘s one of those gaffs that accidentally reveals the truth.

I actually do think the thing that this probably reveals about Joe Biden is that he hasn‘t been in a Dunkin‘ Donuts or a 7-Eleven since he was seven or 11, let‘s say.

He was elected to the Senate at 29.  Actually, I think he was the youngest senator ever elected.  And to be in the Senate for that long, yes, you‘re going to be isolated.

And, I think, one of the other things this shows is that it takes a different skill set to run for president than it does to be a senator.  I think that you...

SCARBOROUGH:  Yes, you really do.

COX:  Right.

SCARBOROUGH:  You really are held to a much, much higher standard.

You know, there are other examples, obviously, of politicians doing a really stupid thing.  You can remember Alfonse D‘Amato making fun of how Japanese people talk or speak.

Or remember Bob Kerrey told a lesbian joke in front of an audience that made Bill Clinton wince.

COX:  Oh, wince, and then maybe later...

SCARBOROUGH:  But you take somebody like Bob Kerrey, or you take somebody like Joe Biden, who aren‘t careful and calculated in everything they do.  They‘re real people.  Anybody that‘s sat there and talked to them, they are actually people that you would like to sit down and talk to at a dinner table.

But is there a certain skill set in Washington that requires somebody to sort of shave off all of the rough edges to be able to run for president?

COX:  Unfortunately, I do think we‘re coming into an era, or have been in an era for quite a while, where spontaneity is really frowned upon.  Spontaneity is something that will get you in trouble.

I mean, I think the least spontaneous candidate running right now is Hillary Clinton.  I mean, she wouldn‘t be spontaneous if you put a tack on her chair.  She would, like, probably have a polling done.  You know, how should she react?

And it think that, unfortunately, the politicians that people tend to

or, I should say—the politicians that reporters like are the ones that are spontaneous and sometimes make more gaffs than others.

I think John McCain is a certain exception to that, and I‘m not

actually sure why.  But he, like Joe Biden and like Bob Kerrey, like other

I mean, I‘m trying to think of the other senators who often, or who can be unguarded.  To be unguarded is to make a mistake a lot of times, because everyone‘s ready, the blogs are ready to pounce on you.

The video like this—this video was posted on Drudge, and now it can be on Youtube and downloaded 4,000 times tonight.

SCARBOROUGH:  It will.  And again, like you said, I mean, people that are in Congress, and people that are—you know, when I first got elected to Congress, I was actually disappointed at how boring it was up there.

I was told that you have members drinking and running around and swearing, whatever.  They‘re actually very, very cautious, very, very careful.  Because, if you show much of a personality at all, of course you get hammered.  And Joe Biden has a personality; he‘s been hammered.

I want to show you, again, I give Joe Biden a free pass on this.  I sound like Bill O‘Reilly.

(LAUGHTER)

I give Joe Biden a free pass.  Biden, you get a free pass!

COX:  These are your passes to give out, I know.

SCARBOROUGH:  Yes.  Yes, as if my hall pass means a damn thing.

But I want to show you a guy that didn‘t get a pass.  And this wasn‘t a gaff.  This was just sheer stupidity.  It was, of course, Alfonse D‘Amato.  Let‘s take a listen.

(BEGIN AUDIO CLIP)

ALFONSE D‘AMATO, FORMER U.S. SENATOR, D-NEW YORK:  Judge Ito will never let it end.  Judge Ito loves the limelight.  He‘s making a disgrace of the judicial system.  Little Judge Ito.

And then he is going to have a hung jury, and Judge Ito will keep us watching television for the next year.

(END AUDIO CLIP)

SCARBOROUGH:  Then, Ana Marie, just played that to put this in proper perspective.  There the guy was making fun of Japanese people.  But here was Biden, probably not the case.  Just bad judgment, right?

COX:  I think so.  Like I said, he did not hit upon an uncomfortable truth.  And I think you can tell from looking at the video, he even, like, said, I‘m not joking.

He was really just trying to pander, which is something he usually does quite well.

SCARBOROUGH:  OK.  Thanks so much, Ana Marie Cox.  As always, greatly appreciated.

And when we come back, we‘ve got much more in SCARBOROUGH COUNTRY, from conspiracy theories to just plain concern.

Where is TomKat‘s baby?

That‘s when SCARBOROUGH COUNTRY returns.

(COMMERCIAL BREAK)

SCARBOROUGH:  Where is TomKat‘s baby?  Well, conspiracy theories abound.  But some Hollywood insiders say it‘s about Tom Cruise‘s ego and greed.

Talk about that when SCARBOROUGH COUNTRY returns.

(COMMERCIAL BREAK)

SCARBOROUGH:  From jumping on Oprah‘s sofa to a very public proposal in Paris, Tom Cruise and Katie Holmes have never tried to keep their romance under wraps.  In fact, the gag factor is just unbelievable.

So, why is it that after 79 days after Katie reportedly gave birth, we‘re still waiting to see pictures of Suri Cruise?

Celebrity babies are everywhere, but TomKat isn‘t ready to introduce TomKitten to the world quite yet.

Cruise did give Ellen DeGeneres a sneak peak.  Take a look.

(BEGIN VIDEO CLIP)

ELLEN DEGENERES, TALK SHOW HOST:  There‘s a bunch of babies here.  Which one does she—this is not Suri—but which one would it look most like, if...

(LAUGHTER)

TOM CRUISE, ACTOR:  Let me see.

DEGENERES:  Like this.

CRUISE:  Let me see.

(LAUGHTER)

DEGENERES:  That one has sideburns.

(END VIDEO CLIP)

SCARBOROUGH:  We‘ll let you draw your own conclusions from that clip.

But with me now to talk about it, from “US” weekly, Katrina Szish.  Also the “Sun‘s” Emily Smith and Scientology expert Rick Ross from the Rick Ross Institute.

Katrina, let‘s start with you.  You guys put this story on your cover. 

Why haven‘t we seen any pictures of Baby Suri yet?

Is there a Baby Suri?

KATRINA SZISH, “US” WEEKLY:  People are wondering that far and wide. 

But there is a Baby Suri, or at least, so we believe.

There are birth records.  There have been evidence that Katie clearly has given birth, based on her post-partum figure.

And even though we haven‘t seen the baby, we do believe it does exist.

SCARBOROUGH:  So, what‘s the mystery about?  You put it on your cover.

We‘ve heard that Tom Cruise is actually afraid of being eclipsed by Brad and Angelina‘s baby.  Is that the case?

SZISH:  That‘s another rumor out there.  But the strange part is, as you mentioned earlier, this has been such a public courtship, a public relationship.  Everything about it has been nauseatingly public—as you said, a high gag factor.

And the fact that suddenly this miracle birth happens, and there‘s no follow-up, there‘s no publicity, there are no photos, just seems a little bit strange and makes a strange relationship even more bizarre.

SCARBOROUGH:  You‘re being very careful.  Don‘t worry, Tom Cruise won‘t sue you.

What are some of the theories out there?

SZISH:  Some of the theories out there are that he—it wasn‘t the right time for him.  He didn‘t have a new project coming out, or it really wasn‘t an appropriate time to use the baby to get publicity.

Other people say that perhaps there was a whole sham, that the baby doesn‘t exist, that the whole pregnancy was a fake.  We don‘t believe that‘s true.

But either way, it does seem also like Tom has been very protective of his children in the past, his two adopted children.  As a Scientologist, he‘s very protective of his children and who he allows them to socialize with.  And we do believe that is a factor here.

SCARBOROUGH:  Emily, will TomKat‘s baby ever fetch as much money as a shot of, let‘s say, Pitt the younger?  Because there‘s a theory out there that Tom Cruise doesn‘t want his baby‘s picture to come in a couple million dollars behind Brad and Angelina‘s baby‘s picture.  Which sounds silly to us, but Tom Cruise is a control freak, right?

EMILY SMITH, “THE SUN”:  Absolutely.  I mean, every part of his image is so tightly controlled.

And there was a rumor going around that he wanted to sell the pictures but then changed his mind, because the asking price wasn‘t anywhere nearly as much as Brad and Angelina‘s baby.

But I don‘t think that there‘s ever going to be another baby that‘ll fetch $4.1 million.  I mean, that‘s the truth.

But as more time goes on and we don‘t see Baby Suri, the interest is growing.  We want to see what the baby‘s like.

SCARBOROUGH:  And, of course, that interest, that concern drives up the value of that picture.

But again, for Tom Cruise, who is considered to be one of the most powerful men in Hollywood, who supposedly got $100 million for a movie, it seems to me that it would actually hurt his marquee value, again, if somehow the buzz around him wasn‘t as hot as it was around Brad and Angelina.

While that sounds stupid to us, it‘s—again, Tom Cruise is very calculating.  And could that go into how much money he makes in his next movie?

SMITH:  Absolutely.  He‘s very sensitive about his market value, his perceived market value.

And there was a rumor that the pictures of Baby Suri reached the $3 million mark.  And when they didn‘t go any higher, that Tom changed his mind and said, right, they‘re not going to be released.

I mean, that was a rumor.  I don‘t know if that‘s true.  But there was

at one point they were talking to a lot of magazines, quite soon after the birth.  And then the pictures were suddenly withdrawn.

SCARBOROUGH:  Rick, talk about Scientology and why, the impact that may be playing in Tom Cruise keeping his baby out of sight for such a long period of time.

RICK ROSS, THE RICK A. ROSS INSTITUTE:  Well, Scientologists believe in silence.  And a calm and harmonious environment around a baby is very important according to the teachings of L. Ron Hubbard.

So, it may be, if a baby is ill or having difficulties or problems, or just to promote that kind of safe and secure environment and avoid what Scientologists call “engrams,” which is an unpleasant experience coupled with a noise, that then becomes forever associated with that trauma.

So, according to his beliefs and the teachings of L. Ron Hubbard, he may feel that the paparazzi, the media clamor around Baby Suri is too much, that it might cause, according to his beliefs, engrams.  And he‘s avoiding that and keeping this kind of cocoon around the child to promote that harmonious period for her development, according to his religion.

SCARBOROUGH:  Scientologists in general are very protective of their children though, aren‘t they?  Home school them, try to keep them out of—keep them out of mainstream America?  Is that correct?

ROSS:  That is correct.  Tom Cruise has two adopted children, Connor and Isabella, that he adopted with Nicole Kidman.

And despite what was supposed to be a shared custody situation, it seems that most of their time, certainly their schooling time is spent with Mr. Cruise.  And he has tutors.

And as he has extolled applied scholastics, L. Ron Hubbard‘s so-called “study tech,” as the cure that alleviated him of dyslexia, he is indoctrinating both of his children, and has been for some time, in Scientology.

SCARBOROUGH:  Katrina, just a general question here.  And you would know, you‘re at ground zero.

Why is it that America and the world seem so obsessed with these baby pictures, more so now than ever before?  So much so that a magazine is going to pay over $4 million to get a glimpse at Brad and Angelina‘s baby.

And now chances are good, if the Cruises keep their child out of public sight for the next three or six months, theirs will probably fetch even more.

What‘s going on?  Why are Americans obsessed?

SZISH:  Well, I think—as you said, I am at ground zero, and I think we all are in a way.  We‘ve all become celebrity obsessed.

The fact that magazines like “US” weekly do so well and that people love them, whether they enjoy them or whether they consider them their Bible, shows that people have gotten to think of celebrities more as friends.

We‘ve learned a lot more about celebrities‘ personal lives over the past few years.  And the public has just become more media obsessed.

Now add a baby to this factor.  Babies are the trendy, Hollywood item de jour.  And suddenly, everybody wants to learn that much more about the private lives of these celebrities.  We‘ve gotten to know the celebrities, know their families.  And now we want to get to know their offspring.

SCARBOROUGH:  And I just want to know why they named their offspring after fruit.

Thank you, Katrina.  Thank you, Emily.  Thank you, Rick Ross.  Greatly appreciate you being with us again.

And still to come in SCARBOROUGH COUNTRY, one year after the disappearance of honeymooner George Smith, a major civil war developing between his family and George‘s widow.  Why the family feud?  We‘ll get to the bottom of it.

And the anchor man who lost his teeth on the air.  No, not me!  Just one of the highlights you‘re going to see in the best of must-see straight ahead.

(COMMERCIAL BREAK)

SCARBOROUGH: The new monogamy.  It‘s the latest craze among urban couples.  But those us in “Red State” America are just calling it old-fashioned cheating.

We‘ll tell you all about it when “Scarborough Country” returns. But first, here‘s latest news you and your family need to know.

(NEWSBREAK)

SCARBOROUGH:  Did you hear that?  North Korea threatens to, what, launch more rockets?

I had bottle rockets on the Fourth of July that went further than those things.

Anyway, welcome back to “Scarborough Country.” 

If you are married, is it OK to cheat?  I‘m going to tell you why some couples think giving cheating a chance is a good thing.

And nothing but net.  This amazing cheerleader video, just a  taste of the very best of “Must See S.C.”

Hey, welcome back “Scarborough Country.”  Right through the net every time.

We‘re going to have those stories just minutes away.

But first, it‘s been one year since George Smith vanished from his honeymoon cruise.  And now a major fight develops between George‘s heartbroken parents and his widow.

George‘s parents  have filed a lawsuit against the cruise ship, charging that the cruise line covered up a possible murder to make it look like an accident.

But Jennifer Hagel Smith is not part of that lawsuit.  Last week she reached a separate settlement with Royal Caribbean.

Tonight there are a lot of people asking why did George‘s widow reach that settlement and wonder also wonder whether she‘s hiding  something.

Let‘s bring in now somebody that has been following this case  from the very beginning, former prosecutor and MSNBC legal analyst, Susan Filan. 

Susan, again, like us, you‘ve been on this case from the very beginning.

Answer it for us.  Why would Jen Hagel Smith decide to settle with a company that treated her as badly as Royal Caribbean?

SUSAN FILAN, MSNBC CORRESPONDENT:  That‘s the question.  I mean, it really seems like dirty pool if you think about the way this case evolved.

She said and her lawyer said that they were going to work with  the Smith family in conjunction together to bring a joint lawsuit against Royal Caribbean.

Right as the statute of limitations is running on the wrongful death lawsuit, it does get filed, but as the Smith family are preparing to sit down for an interview with “48 Hours,” their lawyer, Brett Rivkind, calls and says, “Are you sitting down?”  And they say, “Yeah.”  And they say, “Jen settled.”

She took the legs right out from under them, basically extinguished their wrongful death suit along with her settlement.  And the interesting thing about it is that she told the Smith family back in their home, face-to-face, “I do not want to be deposed in a civil case.  I do not want to be deposed in a criminal case.”

What does that sound like?  Cover up.  What‘s she hiding?  Is it more than she‘s going to look really bad under oath when she talks about where she was that night on the cruise ship and why she wasn‘t  with her husband or is it even worse?

And that‘s something that now doesn‘t seem like the Smith family will ever get an answer to.

SCARBOROUGH: So it‘s basically—you‘re saying that she may have been covering up her actions that night and because of it, a civil war  has erupted between these family members, right?

FILAN: Well, I think the civil war was brewing, but I think while the first shot was officially fired when Jennifer Hagel Smith settled this lawsuit out from under the Smith family.

The Smith family is suing because they want answers.  They want to know what happened to George.  They‘re not in it for the money.

SCARBOROUGH: Yes. With them, it‘s not really about the money so much as it is about, again, they want answers to what  happened that night.

And from what you‘re saying and from what a lot of people close to this case are say saying is that‘s exactly what she does not want. She doesn‘t want answers at least on what she was doing that night.

And in her statement, and she released a statement on the Fourth of July, as you know, Jennifer Hagel Smith still made it sound as if the two families were working together.

She said this, quote, “Now only a year later and a lot wiser, my family and I see that peace really is the only way.  Through civilized conversation, rational thinking and awareness of others, we have come far in our journey seeking answers, justice and closure.”

But, Susan, I would suggest that George‘s parents tonight, I don‘t think they‘re getting answers, don‘t think they‘re getting justice and the last thing they think they‘re getting is closure, right?

FILAN:  I‘d say they are choking on the “closure.”  And they don‘t want closure.  They want to know what happened to George.  They believe that he was murdered.  They believe there was a cover-up by Royal Caribbean.  And now they think that Jennifer Hagel Smith has got to be part of this cover-up.

Because, Joe, you got the very first exclusive interview with Jennifer Hagel Smith and she was, in my opinion, on your show sort of the starry-eyed damsel in distress, playing it to her advantage, being very coy about where she was and what happened to her.

We tried to get on board with our sympathy toward her, but as the case evolved and we saw her on Oprah and then we heard her testify before Congress, where she gave the outrage factor of how she was dumped on the dock by Royal Caribbean, to today where she is basically the poster child for Royal Caribbean, all nicey-nice.

Something stinks to me.  I follow my nose, Joe, and my nose says something is rotten in Denmark.

SCARBOROUGH:  And I‘ll tell you what, there are a lot of people  -- we were showing pictures of George‘s family and his best man during the wedding, groomsmen during the wedding.

There are a lot of people tonight close to George that I know that have to be very hurt, very upset.  Again, not because of the money, not because they don‘t want Jen to have money, but simply because they wanted answers and they‘re just not going to get it.

Now, tonight on the “Abrams Report,” George‘s sister, Bree, actually went on and fired this shot.  Take a listen.

(BEGIN VIDEO CLIP)

BREE SMITH, SISTER OF GEORGE SMITH: It‘s amazing how a little bit of money can turn someone that‘s been so wronged into a poster child for Royal Caribbean and the cruise industry.

(END VIDEO CLIP)

SCARBOROUGH: There you go.  Hey, Susan Filan, thank you so much for being with us.  Greatly appreciate your insights and I hope you come back, because I‘ve got a feeling this story for some time.

FILAN: My pleasure.  Anytime for you, Joe.

SCARBOROUGH: All right, thanks, Susan.

Now, to a story that‘s raising some eyebrows.  Are you happily married?  If not, well, some New Yorkers and other urbanites may have a  solution for you.  Start cheating.

What you‘re about to see  may seem radical, but we think you‘ll find it fascinating.  Well, I say “we.”  Some of my New York producers may think you‘ll find it fascinating.  Certainly my wife and I are  shocked and stunned.  Take a look.

(BEGIN VIDEO CLIP)

JERRY SEINFELD, “SEINFELD”: We‘ve designed a set of rules that we can maintain the friendship by avoiding all the relationship pitfalls.

JASON ALEXANDER, “SEINFELD”: Sure, all right, all right.  Tell me the rules.

SEINFELD: OK, no calls the next day.

ALEXANDER: So you have sex.  The next day you don‘t have to call. 

That‘s pretty good.

SEINFELD: Are you ready for the second one?

ALEXANDER: I have to tell you I‘m very impressed with the first one.

SEINFELD: Spending the night, option.

ALEXANDER: Now, you see, you got greedy.

(END VIDEO CLIP)

SCARBOROUGH: And George and Jerry‘s rules didn‘t work out in Seinfeld, but some modern day Americans are creating their own rules in what they‘re calling the “new monogamy.”

What does that mean?  Well, it‘s the subject of a stunning new article in “New York Magazine” that has this quote from a swinging New York couple.

Quote, “he other night I had a bunch of work to do.  So when he brought a new girl home, I stayed in the bedroom while they took a bath.  I Just walked past and said hi.”

Let me bring in now sex relationship columnists, Em and Lo.  They‘re also writing an upcoming book on the subject.

Em, I must say I‘m tempted to ask where does a New York man find such a woman?

EM, RELATIONSHIP COLUMNIST: Yes, it‘s a good question.  It‘s funny.  Most of the people we interviewed for this piece weren‘t quote as extreme as that couple you quoted.  And we about fell out of our chairs when we heard that story.

We were trying to maintain our journalistic disposition, but it was completely lost at that point, as it requires a degree of not being jealous that most people simply can‘t attain.

SCARBOROUGH: Some couples have special rules and let‘s take a look at them.

The vampire rule.  If they are both in the same city, they have to make it back by dawn.

The postcard rule.  If they are seeing someone else on their own, they have to bring home photographic evidence.

The above-the-waist rule.  An agreement that any touching above the beltline is fair game.

For most Americans, this would seem absolutely shocking that married couples and even single couples that were dating each other would engage in these type rules.  And they‘re probably saying to them, “Well, then, if that‘s the way you feel, why don‘t you get a divorce or why don‘t you break up?”

What do they tell you?

LO, RELATIONSHIP COLUMNIST: Benign monogamy isn‘t what‘s new.  What‘s new is that people are openly negotiating the terms of their monogamy.

For so long the standard of marriage was the man brings home the  bacon and gets to stray and the woman just turns the other way and bakes a cake.

But now there‘s more equality in relationships. Women feel more comfortable expressing their own sexual needs.

SCARBOROUGH: Let me bring in right now Charmaine Yoest.  She‘s the vice president for communications for the Family Research Council.

Charmaine, is monogamy an antiquated concept?

CHARMAIN YOEST, VICE PRESIDENT FOR COMMUNICATIONS, FAMILY RESEARCH

COUNCIL: Joe, I think the sad thing to me is that what I hear here is a lot of people setting themselves up for failure.

We know that this kind of thing doesn‘t work.  We‘re not denying that.  We‘re not saying marriage and monogamy is wrong and you should open the doors and have a swinging lifestyle.  I don‘t think anyone that we talk to would say that.

In fact, it was only the strictly monogamous people we talked to who said, “I don‘t even want to talk about this subject.”  But the people who had slightly more open relationships, they were willing to  consider the possibility of closing the door, being monogamous.

They just had a more elastic interpretation of their relationship.  They wanted the relationship to be able to bend instead of breaking under the pressure.  So they felt like their relationship was sort of wrapped in a rubber band rather than being a ball and chain.  And for them it worked.  It‘s not for everybody.

SCARBOROUGH:  OK, we‘re going to have to leave it there.  Thank you, Em.  Thank you, Lo.  And as always, Charmaine, thank you so much for being with us. 

I‘m joined right now by Rita Cosby, she‘s the host of “Rita Cosby Live and Direct.” 

Rita, I‘ve got to tell you, that may sell in New York City and some places, but it won‘t sell in Peoria.

But what are you selling coming at 10?

RITA COSBY, HOST, “LIVE AND DIRECT”: Well, we are selling a lot, Joe.

As you know, we‘re moving on to new and exciting ventures and  tonight we‘re going to be taking a look back at some of the incredible moments we‘ve had here on “Live & Direct”.

We‘ve had a great show and we‘ve got some really great stuff to share with all of you from Howard Stern, to the border, to the Michael Jackson jurors.

And speaking of Michael Jackson, tonight some big news and some eye-opening allegations, some new ones against the pop superstar who may now in some more legal hot water.

We‘re going to have Michael Jackson‘s own words at the top of the hour and also look back at a great year on “Live & Direct” in just a few minutes from now, Joe.

SCARBOROUGH: Hey, thanks so much, Rita.  And I‘ll tell you what, you do have some very exciting things straight ahead.  I‘m very excited for you and for MSNBC.

COSBY: Thank you.

SCARBOROUGH: I think like everything that you do, it‘s going to be fantastic. Thanks a lot, Rita.

COSBY: Thank you, Joe.

SCARBOROUGH: And coming up here, is it George Bush or U2‘s Bono?  The Web clip you‘ve got to see.

And speaking of “Must See,” remember Bruce Willis‘ unexpected dousing? 

It‘s just part of our look of the best of “Must See.”

Wake up, grandma.  That‘s coming up next.

(COMMERCIAL BREAK)

SCARBOROUGH: We bring them to you every night, the craziest videos from across the country, across the world and across the Web.

But tonight, there‘s electricity in the air because we bring you the very best of “Must See S.C.”  Enjoy.

(BEGIN VIDEO CLIP)

ANNOUNCER: From dancing celebrities to bad boys beat-downs to  dogs riding bikes and about everything in between.

RON BURGUNDY: We‘re going to go to commercial.  We‘re going to get this straightened out, because I‘m fed up with this crap.

ANNOUNCER: “Must See S.C.” has brought you some of the finest moments ever to be caught on tape.

UNKNOWN MALE: And that, my friends, is the end of the interview.

ANNOUNCER: The Internet gave us some jaw-dropping videos, like  this lucky cheerleader who was tossed right through a basketball hoop.

And a group of skateboarders who make the Harlem Globetrotters look like their local high school team.

And move over, “American Idol.”  “Must See S.C.” was the launching point for our very own cast of Internet idols.

We showed you the Diet Coke and Mentos experiment before it landed in your e-mail inbox.  And the frightening, ever changing faces of the incomparable Michael Jackson.

We had celebrities tackling Christmas trees.  We had pseudo-celebrities crashing into parked cars and we had washtub celebrities embarrassing themselves on dance floors.

We‘ve shown you implosion after implosion after implosion.  Even the ones that didn‘t go quite right.

UNKNOWN FEMALE: We‘re all a little stunned.  We really did not expect to see both towers come down like that.

The video wackiness didn‘t stop at the shores of the good old U.S. of A., though.  We also took “Must See” overseas and went inside the halls of government.

Here to catch two Czech politicians legislating with their fists.  And these Wright Brother wannabes proving yet again that beer and lamps are almost always a bad combination.

We still can‘t figure out why these inmates in Thailand are laughing.

A white Russian president, Vladimir Putin, felt it necessary to kiss this boy‘s stomach.

But one thing we do know is that when soccer‘s involved, the street fights usually aren‘t far behind.

We went from sports overseas to our own great American pastime to catch this Boston Red Sox bad boy doling out punishment to one rowdy  fan and to see this guy trample his own girlfriend just to get a foul ball.

And life wasn‘t much easier for a couple of members of the Chicago Cubs ground crew who painfully learned the definition of  occupational hazard.

When bears were on the loose in New York, in Florida, in New Jersey, in California, “Must See S.C.” was there to remind you what  happened to one brave trampoline bear once upon a time.  And don‘t worry, Ethel, he‘s fine.

And when dust storms involve envelope cities and anacondas regurgitated hippos “Must See” was there.    

When three motorcyclists were thrown from bikes and stolen shoes were thrown from cars, “Must See” was there.

And “Must See” was there when there were embarrassing live TV moments, like anchors losing their teeth.

REPORTER: Donna, this is the funniest thing.  I‘m going to have to duck out of here.

REPORTER: OK.

REPORTER: I have a bridge that has fallen out.  So, Dr. Stringfellow, get ready.

REPORTER: All right, call the dentist.

REPORTER: Good night.

REPORTER: All right, good night, Greg.  Thanks for being here.

ANNOUNCER: And others losing their cool.

BURGUNDY:  Good evening and thank you for joining—oh, no.  The echo‘s back.  Is it going over the air?  Yes.  Well, let‘s see if we can straighten that out.  I‘ll just sit and wait.  New automated system we have.  Is it better now?  They don‘t hear it now?  How come I can hear it in here?

I tell you what.  We‘re going to go to commercial.  We‘re going to get this straightened out, because I‘m fed up with this crap.

SCARBOROUGH: But, friends, once again, through it all, one thing remained constant.  “Must See S.C.” was always there.

(END VIDEO CLIP)

SCARBOROUGH: And up next, more “Must See.”  The president singing a U2 classic?  We‘ll show you.

(BEGIN VIDEO CLIP)

GEORGE BUSH, PRESIDENT OF THE UNITED STATES: (Singing) I can‘t close my eyes and make it go away.  How long, how long must we sing this song?  How long?  Too long, for too long.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

SCARBOROUGH: You know, George W. Bush and U2 lead singer Bono may seem like an odd couple when it comes to geopolitics, but imagine if the president were to sit in with the band.

Take a look at what we found on the Internet.

(BEGIN VIDEO CLIP)

BUSH: There‘s been a lot of talk about this next song.  The song, it‘s not a regular song.  (Singing)  I can‘t believe the news today.  I can‘t close my eyes and make it go away.  How long, how long must we sing this song?  How long?  Too long, for too long.

Tonight we can be as one.  Tonight, broken bottles under children‘s feet, bodies strewn across the dead-end streets.  But I won‘t heed the battle call.  It puts my back, it puts my back against the wall.

Sunday, bloody Sunday.  Sunday, bloody Sunday.  Sunday, bloody Sunday.

(END VIDEO CLIP)

SCARBOROUGH: I think I prefer the version on war.  Somebody‘s got a lot of time on their hands.

We‘ll be right back with more “Scarborough Country.”

(COMMERCIAL BREAK)

SCARBOROUGH: We have a landslide tonight.  The results are in from our last “Scarborough Country” poll.  Should the government continue going after Ken Lay‘s millions even though he died?  95 percent say yes, 5 percent no.

So, government, looks like “Scarborough Country” says go after Ken Lay‘s money.

Well, thanks so much for being with us today.  That‘s all the time we have, but we‘ll see you here again on Monday.

Rita Cosby, “Live and Direct,” a very special Rita Cosby “Live and Direct” starts right now.  Let‘s go to the very special Rita Cosby.

Rita?

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

END   

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