updated 3/22/2005 12:16:15 PM ET 2005-03-22T17:16:15

Guest: Lisa Bloom, Courtney Anderson, Shmuley Boteach, Peter Beinart, Jay Sekulow, William Hammesfahr, Joe diGenova, John Conyers, Chris Smith, Randall Terry

JOE SCARBOROUGH, HOST:  The life or death fight to keep Terri Schiavo alive, while you were sleeping, an extraordinary fight on the floor of Congress, as Tom DeLay led some Republicans and Democrats in a battle to save a Florida woman‘s life. 

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

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  But in extraordinary circumstances like this, it is wise to always err on the side of life. 

(END VIDEO CLIP)

SCARBOROUGH:  A family fight spills onto the floor of Congress. 

REP. TOM DELAY (R-TX), MAJORITY LEADER:  Mr. Speaker, after four days of words, the best of them uttered in prayer, now comes the time for action. 

(END VIDEO CLIP)

SCARBOROUGH:  Congress struggles to save a young woman‘s life, but did they rip up the Constitution to do it?

And a Nobel Prize-nominated neurologist who has treated Terri Schiavo, he says Terri should live and that her husband is perpetrating a hoax that is just aimed at killing his wife. 

And another courthouse meltdown, as a trembling Michael Jackson arrives late to court and again weeps once he‘s inside the courthouse.  Is Jacko wacko or is he just crazy like a fox? 

ANNOUNCER:  From the press room, to the courtroom, to the halls of Congress, Joe Scarborough has seen it all.  Welcome to SCARBOROUGH COUNTRY.

SCARBOROUGH:  You know, we begin this show tonight with a wrenching story, and it is such a wrenching story. 

You know, over the weekend, when I went out to eat with my family, when I was talking to people at church, everybody was talking about the story involving Terri Schiavo.  You know, it‘s been a long 15 years and an amazing 24 hours.  Congress spent Sunday in a pitched battle that lasted until the president was awakened at 1:30 in the morning, all in order to sign a bill that would reverse a Florida judge‘s court order and force doctors to reinsert Terri Schiavo‘s feeding tube. 

Now, Terri‘s estranged husband, Michael, who wants the tube pulled, says she should be allowed to die with dignity.  Terri‘s parents say that she‘s responding to them with laughter and a smile.  So who is right?  And why is yet another judge now deciding this 15-year-old case?  We‘re going to sort it all out for you tonight. 

And we‘re going to begin with Randall Terry.  He‘s spokesman for Terri Schiavo‘s parents, Bob and Mary Schindler. 

Mr. Terry, thanks for being with us.  A lot of people see you on the show tonight, understand what this story‘s all about and they are saying, OK, well, great.  Here‘s a perfect example.  Here‘s Randall Terry.  He‘s been involved in the pro-life movement.  He and people like DeLay are using this terrible personal tragedy to gain political points.  It‘s sick. 

What do you say to those people? 

RANDALL TERRY, SPOKESMAN FOR PARENTS OF TERRI SCHIAVO:  Well, most of us are doing this because we believe in it.  We believe in Terri‘s right to be alive.  I‘m doing it because Bob and Mary asked me to do it.  And it‘s just that simple. 

And I believe that Terri is a living, breathing human being that should absolutely not be starved to death. 

(CROSSTALK)

SCARBOROUGH:  But is she in a vegetative state?  Because we hear that she‘s in a permanent vegetative state.  She can‘t respond to anybody.  But we‘re hearing reports that she‘s talking to her parents. 

(CROSSTALK)

TERRY:  Joe, it is a lie.  It is an absolutely lie, as you‘ll learn from Dr. Hammesfahr, who is a brilliant man. 

But beyond that, Michael Schiavo and Judge Greer have scammed all of us.  People keep saying 15 different courts have heard this.  This is simply not true.  Here‘s what happened.  Judge Greer dismissed, obliterated, refused to hear testimony from about 30 doctors. 

SCARBOROUGH:  Why? 

TERRY:  Because he wanted her dead, because he decided that she wasn‘t going to live. 

(CROSSTALK)

SCARBOROUGH:  OK, Randall, but what do you say, though?  A lot of people out there are saying, hey, this—and you know, you Republicans—

I‘m not saying you—but people say, you Republicans, you conservatives, always fight to defend marriage, and yet here‘s a case where you‘ve got a marriage that works.  You‘ve got a husband talking to a wife, the wife saying, if that ever happens to me, pull the plug.  And now you‘re saying, forget the marriage.  Let‘s talk to the parents. 

TERRY:  I‘m going say this.  Michael Schiavo is a liar, OK? 

He won over $1.5 million because he had to care for her and take care of her, and he got the money and then, shortly thereafter, started using the money to pay hired attorneys to kill her.  And whenever she would get sick, the hospice staff, he would say, you‘re going to make me a rich person.  Don‘t treat her.  Don‘t give her antibiotics.  He has wanted her dead for years.

(CROSSTALK)

TERRY:  ... get the money.

SCARBOROUGH:  Wait, wait, wait, wait.  How long has she been in hospice?  Because we understand that, in hospice, you can only be there for what, three to six months?

TERRY:  Six months.

(CROSSTALK)

SCARBOROUGH:  Yes.  How long has she been in hospice? 

TERRY:  She‘s been in a hospice for over five years. 

SCARBOROUGH:  How does that happen? 

(CROSSTALK)

TERRY:  Locked in a room.  There are so many parts of this case that are unjust. 

That is why the Congress stepped in and is breathing down Judge Greer‘s back, because Judge Greer is a corrupt judge.  And that should not surprise anybody.  People find out about corrupt judges all the time.  Judge Greer happens to be one of them.  And I can only hope that he ends up with a contempt of Congress and ends up getting impeached and thrown off this case. 

SCARBOROUGH:  All right. 

TERRY:  We don‘t have time to give the delineation of all the ways in which Judge Greer has betrayed justice, broken the law, and thrown out valid testimony to suit his ideological agenda.  And, remember, this man is nearly blind.  He has not even been able to watch the videos himself.  He lets his staff do it.  He should have recused himself from this case. 

(CROSSTALK)

SCARBOROUGH:  All right, Randall Terry, we‘re going to have to leave it there.  We thank you for being with us tonight.  We‘re going to ask you to come back.  We‘ve got a big panel tonight.  We‘re going to talk about a lot of these things that you really have helped tee off for us.  And we appreciate you being here tonight. 

You know, there was an unprecedented Palm Sunday session in Congress.  I don‘t know if you stayed up to watch it last night.  I did.  It was remarkable.  It was debated into the early hours of the morning.  I want you to take a listen to some of the key moments of that debate. 

(BEGIN VIDEO CLIP)

REP. JAMES SENSENBRENNER ®, WISCONSIN:  CNN ANCHOR:  If prisoners on death row are guaranteed federal review of their cases, Terri Schiavo deserves at least as much consideration.  The 14th Amendment of the Constitution says no state shall deprive any person of life, liberty, or property without due process of law.  This means Florida may not starve Terri to death unless every legal recourse to prevent it has been taken. 

REP. JOHN LEWIS (D), GEORGIA:  This is a matter that should rest with the family, their conscience and their God.  The Florida courts have spoken and we should not intervene.  This is a very, very sad night for the House of Representatives . 

REP. STEVE KING ®, IOWA:  Terri Schiavo deserves her day in court.  She deserves a de novo review.  She deserves an opportunity to be heard and an opportunity at life. 

REP. BARNEY FRANK (D), MASSACHUSETTS:  It is true that the Constitution gives Congress the right to provide the jurisdiction of the courts.  This bill does that for one individual, which, as the gentleman from Georgia‘s comments make clear, it is based on the facts of the one case.  This is not an act of legislation.  This is a case-by-case adjudication because members here genuinely dislike the outcome of the Florida court system. 

DELAY:  For 58 long hours, her mouth has been parched and her hunger pains have been throbbing.  If we do not act, she will die of thirst.  However helpless, Mr. Speaker, she is alive.  She is still one of us.  And this cannot stand.  Terri Schiavo has survived her passion weekend and she has not been forsaken.  No more words, Mr. Speaker.  She‘s waiting.  The members are here.  The hour has come.  Mr. Speaker, call the vote. 

(END VIDEO CLIP)

SCARBOROUGH:  And that vote at 12:42 a.m. passed 203-58.  And it allows a federal judge to take a look at this case and reopen it. 

With me now are two men who were a critical part of that debate.  We‘ve got Congressman Chris Smith and we also have a former colleague of mine on the Judiciary Committee, Congressman John Conyers. 

Congressman Conyers, let me begin with you.  You heard what Tom DeLay had to say.  He said, this is a matter of life and death.  What do you say to those Americans out there that may agree with Tom DeLay and say, you know what?  We shouldn‘t allow this young woman to starve to death, shouldn‘t allow her to die of thirst? 

REP. JOHN CONYERS (D), MICHIGAN:  Well, unless the House of Representatives and the Congress are, Joe, going to become a forum that hears several hundred of these cases every six months, this isn‘t going to work.  We need to pass a law.  And this is not a law.  We‘re intervening on sides.

And people are perfectly at their liberty to pick which side they want to be on.  All I‘m trying to prove to you tonight is that, to create a super Supreme Court after the case has been litigated for seven years with doctors who have been there, who have attested and talked to everybody  -- they‘ve worked with Terri.  They have satisfied court after court.  Even the federal court refused to take it on appeal.  And here we are now.  We‘re going to be holding these kinds of cases from now on unless something is... 

(CROSSTALK)

SCARBOROUGH:  Chris Smith, what have you done? 

Again, like Congressman Conyers said, this has been tried in the courts.  The doctors have looked at it, and yet, Congress steps in and says, it‘s been 15 years.  Let‘s start the cycle all over again. 

What have you all wrought? 

REP. CHRIS SMITH ®, NEW JERSEY:  Joe, I‘ve been in Congress now 25 years, and this is one of the most remarkable days I have ever experienced, where the entire Congress has looked at an egregious case where a woman who is simply disabled has been found by several neurologists not to be in a persistent vegetative case.

SCARBOROUGH:  But that is not what Congress does, though, on a case-

by-case basis.

(CROSSTALK)

SMITH:  But, Joe, has been condemned to die by court order.  There‘s a larger issue.  And if John is right that these kinds of deaths are occurring all over with people who are not with—with stage four cancer or some other terminable disease and are being starved to death and being told that they cannot have any liquids, we have a major problem on our hands in this country. 

But the case of Terri Schiavo clearly shows that there‘s a dispute among the family.  Michael Schiavo, going back to 1993, after a huge windfall was gleaned by him and the trust, right after that, all interventions, therapies, medical assistance was precluded and denied to Terri Schiavo.  That‘s outrageous.  Doctors have testified that best practices could be used to mitigate, to help her mitigate her suffering, to make sure that she can operate at the highest possible functioning in life. 

(CROSSTALK)

SCARBOROUGH:  John Conyers, a lot of people are offended by the facts, John, that, again, this lady has been in hospice for several years. 

SMITH:  Five years. 

SCARBOROUGH:  Five years.

SMITH:  Five years.

SCARBOROUGH:  Her husband wouldn‘t allow her to be treated for infections.  He allowed her teeth to get so rotten that they had to yank three or four—three or four of her teeth.  There are a lot of people disturbed by what‘s going on here.  What do you say to those people? 

CONYERS:  Oh, I am disturbed as well. 

But we‘ve had no hearings in the Congress.  You have 535 people who have been called.  There‘s not been, Joe, one hearing in the committee, no chance for witnesses, no nothing.  We just hopped on a plane within 24 hours, reported in for duty, as the speaker ordered us, and we began debating the case based on what we knew, felt, thought.

SMITH:  Joe, if I could, this woman, who is not dying.

CONYERS:  It‘s not the right way to proceed. 

SMITH:  Joe, this woman, who is not dying absent a court order that is compelling her death, could live for another 20, 30, maybe more years at a higher function of capability.  But that‘s being denied her. 

As I said before, five years in a hospice.  People go to hospices—and my mother went to a hospice when she had terminal cancer and was dying as a way of mitigating pain and pain management.  It is not for people who are disabled. 

(CROSSTALK)

SCARBOROUGH:  Well, you know, Congressman, you‘re exactly right.  You bring up a great point.  And I‘ll tell you what.  Regardless of what you think of this case, her husband has acted in a deplorable manner.  Infections, we understand, were just racking this young woman‘s body.  He did not allow treatment on those infections.  He let her live in a hospice situation that was absolutely dismal. 

And, you know, there are doctors out there that say she could have improved, could have recovered.  We‘re going to have one of them coming in just a second into SCARBOROUGH COUNTRY. 

Congressman Smith and Conyers, thanks so much for being with us tonight, a fascinating story. 

We‘re going to have a lot more on this extraordinary case of Terri Schiavo when we come back. 

And we‘re also going to have the latest from the federal court in Florida.  And I‘m going to be talking with a Nobel Prize-nominated neurologist who has treated Terri Schiavo and he says her husband is pulling a huge hoax simply to kill his wife. 

And then Michael Jackson, late to court again.  And, once inside, the pop star is seen crying.  Is this guy crazy like a fox or just crazy? 

And tonight‘s “Real Deal,” if the government had done its job, little Jessica Lunsford would be alive today.  I‘m going to tell you why when SCARBOROUGH COUNTRY continues. 

(COMMERCIAL BREAK)

SCARBOROUGH:  Coming up, a Nobel Prize-nominated neurologist who is treating Terri Schiavo says her husband is pulling a hoax.  We‘ll get his testimony when SCARBOROUGH COUNTRY returns.

(COMMERCIAL BREAK)

(NEWS BREAK)

SCARBOROUGH:  For the very latest developments from Florida in the Terri Schiavo case, let‘s go now to Kerry Sanders, who is with us from the federal courthouse in Tampa. 

Kerry, what‘s the latest? 

KERRY SANDERS, NBC CORRESPONDENT:  Well, Joe, Judge James Whittemore will make a ruling in this case, but he did not set a deadline for when he will make that ruling.  He is clearly aware that there is some sort of forced deadline here because of the health of Terri Schiavo, but he did not indicate when he will actually make a ruling, just that he will make one soon. 

The attorneys, 13 in all, according to my count, in the courtroom today, but primarily two making their arguments.  After they made their arguments over about a two-hour period in the courtroom, they then came back outside here to the sidewalk and repeated some of those arguments. 

(BEGIN VIDEO CLIP)

GEORGE FELOS, ATTORNEY FOR MICHAEL SCHIAVO:  We want him to know the facts of this case.  We want him to be thoroughly versed in what happened in the state court proceedings, because it‘s obvious to anyone who knows the facts, instead of the propaganda, that due process was had here and all of Mrs. Schiavo‘s rights were protected. 

DAVID GIBBS, ATTORNEY FOR PARENTS OF TERRI SCHIAVO:  We don‘t believe food and water is medical treatment.  What we believe she‘s being denied is her fundamental right to life.  She is being murdered in a barbaric fashion.  She is being starved to death. 

(END VIDEO CLIP)

SANDERS:  Now, the lawyers will be making additional brief filings to the court, but the judge says he is working on his decision whether to actually issue a temporary restraining order, which would mean to take Terri Schiavo from the hospice over to the hospital, about 30 minutes away, and reinsert that feeding tube, or whether the law as passed was unconstitutional and whether she should not have it and should just continue to, in this case what both sides all agree, whither away and eventually die—Joe. 

SCARBOROUGH:  All right, thanks so much, Kerry.  We greatly appreciate it.

And now let‘s move from the medical front to the legal front. 

And let me bring in Joe diGenova.  Of course, he‘s a former U.S.  attorney in the District of Columbia. 

Joe, why did the Republican Congress do what they did?  How extraordinary was that? 

JOE DIGENOVA, FORMER FEDERAL PROSECUTOR:  Oh, it was really quite remarkable, Joe.  I think this is a case that is so unique in its breadth and its scope that I was fascinated by the fact that the Democrats did not raise any objections in the Senate, that the bill went through on unanimous consent or on a voice vote and then went to the House, where there were some Democrats who objected and even some Republicans. 

But it is a case that has cried out for response from government.  And I must say the Congress, I thought, acted responsibly.  They didn‘t say to people in Florida, you must put the feeding tube back in.  They simply created a legal right for the Schiavo family, the Schindler family, to litigate the issue in a federal court. 

Now, it may end up being that the judge declares that statute unconstitutional, but I don‘t think that Congress acted irresponsibly.  I think they acted in response to a human need and what they perceived to be a legitimate need involving the life of the human being.  It certainly beats naming post offices after people. 

(CROSSTALK)

SCARBOROUGH:  Well, maybe so, Joe, but, I mean, let‘s face it, all right?  You and I may think this is a good idea.  Maybe you do.  Maybe you don‘t.

But, at the same time, Joe, what would happen if Democrats were in charge of the House and the Senate and you had Ted Kennedy and Nancy Pelosi going out there trying to use these devices to end the life of someone like Terri Schiavo?  Wouldn‘t we be saying that Congress is overstepping their bounds, that they‘re violating the smoke basic tenets of the Constitution? 

DIGENOVA:  Well, if someone were, in fact, trying to use legislation to end someone‘s life, I would certainly think that people would be quite upset about that.  And that is not to say that there‘s not irony in this case in terms of conservatives using the legislative process to essentially interfere in what they believe to be a state proceeding that has gone wrong. 

But I‘m not any more surprised by that than many things that Congress does. 

SCARBOROUGH:  All right.  Thanks so much, Joe diGenova.  We greatly appreciate you being here tonight. 

You know, we‘ve been getting a lot of information out there about this case.  And is it misinformation?  Well, we don‘t know because there‘s been a battle back and forth, not only with his family that we‘ve been following, but also on the floor of Congress. 

So, what is Terri Schiavo‘s true medical condition?  Here to help us sort it out is Dr. William Hammesfahr.  He‘s a neurologist who was nominated for a Nobel Prize for his work in medicine.  And he‘s one of the doctors who has treated Terri Schiavo. 

Now, Doctor, if you can, clarify for us her situation.  Obviously, you investigated that situation.  Her husband says that she‘s in a permanent vegetative state.  You don‘t believe that, do you? 

DR. WILLIAM HAMMESFAHR, NEUROLOGIST:  No, she‘s not in a permanent vegetative state at all.

SCARBOROUGH:  Is he lying about that? 

HAMMESFAHR:  He‘s absolutely misrepresenting what‘s happening. 

There‘s a hoax been perpetrated on the American public and on the media for the last five years about this case.  She is—if you go to the mall and you see those children who have got cerebral palsy or brain injury who are in wheelchairs, they‘re going around—more severe cases might have some kind of electronic straw to puff on to move around.  She‘s not as bad as those kids. 

Less severe cases, you know, stand up or sit up and can sort of moan and make sounds that get their wishes known, you know, what they want to eat.  And she‘s like that right now. 

(CROSSTALK)

SCARBOROUGH:  But we have heard, Doctor, she‘s in a permanent vegetative state from this husband who says that she should die. 

HAMMESFAHR:  OK.  Let‘s clear up what a permanent vegetative state is a little bit and then you can have your viewers make their own decision, because, obviously, the House and the U.S. Senate have introduced and passed bills brought on by physicians who have made their own decision after looking at the evidence. 

The evidence is at the TerrisFight.org Web site, where there‘s videos of her, especially the videos with Dr. Cranford, a neurologist, who asks her to do different things.  And she does it.  She follows commands.  And no coma patient and no PVS patient follows commands. 

SCARBOROUGH:  What kind of commands does she follow? 

HAMMESFAHR:  Well, she follows a lot of different commands.

But let me explain a little bit first about what coma is, because she‘s a type of—they say that she‘s a type of coma.  What a coma is, is a person who has no ability to respond to the world around them.  There‘s no ability at all of any sort.  They don‘t make sounds appropriately.  They don‘t make sounds people.  And they obviously can‘t understand English in order to do something. 

Now, a persistent vegetative state is kind of a subset of coma.  In a persistent vegetative state, a person looks like they‘re awake, but, again, is completely unaware of their surroundings.  So, you could have a brass band walk through the room and they wouldn‘t have any awareness that that‘s going on.  They just continue doing exactly what they were doing before.  And, again, they obviously can‘t understand language.

SCARBOROUGH:  That‘s not the case with her, right? 

HAMMESFAHR:  No, not at all. 

It‘s interesting.  She actually responds to people in different ways.  When I went in initially, she acknowledged my presence and then ignored me, as she ignored her husband and she also ignored the videographer. 

SCARBOROUGH:  Well, that‘s what my children do all the time.  They ignore me.

SCARBOROUGH:  Hey, Doctor, tell me this.  Has she gotten better or worse under her husband‘s care? 

HAMMESFAHR:  Much worse. 

SCARBOROUGH:  How‘s that? 

HAMMESFAHR:  Well, first of all, she didn‘t have a heart attack.  The first story that gets circulated is that she had a heart attack due to an eating disorder or an electrolyte imbalance. 

SCARBOROUGH:  That‘s not true? 

HAMMESFAHR:  No, not true. 

She didn‘t have a heart attack.  And when you have a heart attack, your body releases chemicals called enzymes from the heart muscle in the bloodstream.  And those enzymes were never present.  She didn‘t have—she did have an electrolyte imbalance, but not severe enough to cause problems.  It was probably brought on by the ambulance service giving her a little bit too much fluid. 

We know that electrolyte imbalances that they talk about cause heart attacks as a means of causing death.  And we know she didn‘t have a heart attack.  So, she didn‘t have an electrolyte imbalance.  There‘s no evidence of any sort that she had an eating disorder leading up to her collapse.  She didn‘t have a heart attack.  So, what did happen?  Well, she didn‘t have anything wrong with her, as far as we can tell.  Her lungs were good.  She had no signs of infections.  So, there was never an explanation for why this happened to her. 

SCARBOROUGH:  Well, how did she get in this bad of a situation if she didn‘t have a heart attack? 

HAMMESFAHR:  Well, we don‘t really know.  What we do know is that she was—she apparently told her family she was going to leave Michael.  And they asked that she not return to him that night.  And the next morning, she is found face down on the floor unresponsive.  The ambulance...

(CROSSTALK)

SCARBOROUGH:  I have got to stop you there.  Who told you that? 

HAMMESFAHR:  That‘s in the record, the medical and legal record.  So, we know that for a fact.  And then she was taken into...

SCARBOROUGH:  Are you suggesting foul play here? 

HAMMESFAHR:  I‘m suggesting that an investigation needs to be done of this case. 

SCARBOROUGH:  Doctor, thanks for being with us.  Explosive allegations. 

I‘ll tell you what.  We‘re going to have a lot more on the debate to keep Terri Schiavo alive when we return.  And what, if anything, can Americans learn from this heartbreaking story? 

(COMMERCIAL BREAK)

(NEWS BREAK)

ANNOUNCER:  From the press room, to the courtroom, to the halls of Congress, Joe Scarborough has seen it all.  Welcome back to SCARBOROUGH COUNTRY.

SCARBOROUGH:  Well, the United States Congress, President Bush, and the Vatican have all put their considerable weight behind the fight to keep Terri Schiavo alive.  A very private decision has become very public. 

And here to talk about the ramifications not just for and you your family, but also for Republicans and Democrats, is MSNBC analyst Pat Buchanan, the editor of “The New Republic,” Peter Beinart.  We‘ve got Jay Sekulow.  He‘s the chief counsel for the American Center of Law and Justice, also named as “TIME” magazine‘s—one of their top 25 most influential evangelicals in America.  And we have radio talk show host Rabbi Shmuley Boteach. 

Pat Buchanan, let me start with you.

We always hear, conservatives want government out of their schools.  They want government out of their churches.  They want government out of their lives.  And yet here you‘ve got a so-called conservative Congress and president getting involved in the most intimate details of a family‘s life, as single family‘s life.  How dangerous is that? 

PAT BUCHANAN, NBC POLITICAL ANALYST:  Joe, this is not a single family‘s life.  A woman has been sentenced to death not because she committed a grave crime, but because she is severely brain-damaged.  And she‘s been sentenced to death by dehydration and starvation, an innocent person. 

When the German doctors committed those crimes in the 1930s, even before World War II, they were put on trial for crimes against humanity.  The Congress, all it did, Joe, was take this case and say, it looks to us like this woman is being put to death unjustly.  We believe that that‘s a constitutional right to life and a federal court, which defends the Constitution, should hear it.  That‘s all they‘ve done.

SCARBOROUGH:  Pat, are you comparing Terri Schiavo‘s husband to a Nazi? 

BUCHANAN:  I‘m comparing that judge‘s decision to a crime against inhumanity.  I‘m saying that her husband, who did not use all those funds to take care of her, that her husband, who used the money to see if she could be put to death, that her husband, who married someone else or is living with someone else and has two kids, is not really a husband anymore. 

If she got well, she would divorce him in a second and he would not go back to her.  The people that care about this woman are the ones who want to keep her alive, her mother, her father, her sister, and her brother.  And that is obvious on the face of it, Joe. 

SCARBOROUGH:  Peter, Peter Beinart, it does seem obvious that this guy, this husband has not been the best of husbands in the most difficult of times.  I don‘t know that that justifies Congress stepping in, but at the same time, isn‘t it trouble that he‘s kept her in a hospice facility for five, six years, that he‘s moved on with his life, which is fine?  He‘s got two kids with another woman.  But his parents—or her parents are saying, please, it‘s our daughter.  All of her blood relatives are saying, let‘s save her life.  Isn‘t that compelling?

PETER BEINART, EDITOR, “THE NEW REPUBLIC”:  No.  He‘s really not the issue.

The issue is, did she want to die?  Did she say that if she were in a situation like this, she would want to be allowed to die?  That then becomes a due process question.  Who has the best—who has the right to make that decision?  It‘s not Congress‘ right.  It‘s the courts‘.  We haven‘t heard all the evidence.  No one on this panel knows all of the evidence.  The courts are constitutionally empowered to make that decision.

And it is wrong, because the Congress did not like their decision, to take it out of their hands and move it to a federal court when the federal courts themselves have said they have no jurisdiction. 

(CROSSTALK)

SCARBOROUGH:  Hold on a second.

Jay Sekulow, I wanted to ask you that question. 

JAY SEKULOW, CHIEF COUNSEL, AMERICAN CENTER FOR LAW AND JUSTICE:  Yes. 

Sure. 

SCARBOROUGH:  You and I both learned in law school that you don‘t have appeals courts trying to figure out what the facts are of the case.  That‘s up to the trial judge.  The trial judge took in the facts.  And unless there‘s just a remarkable screw-up on his part, you can‘t reverse that decision. 

SEKULOW:  Well, hold it.  First of all, Joe—and you know this—in capital cases, when someone‘s sentenced to death, they can go through the entire state process, have their conviction and death penalty confirmed.

SCARBOROUGH:  Is this a capital case, though? 

SEKULOW:  Well, it is for this woman, because she‘s getting the death penalty. 

SCARBOROUGH:  It‘s not classified as a capital case, though. 

SEKULOW:  Well, now—well, here‘s what happened.  And you know this. 

Congress has the authority—and they did it—to grant jurisdiction. 

The federal courts have not reviewed this case on the merits.  It‘s always been dismissed on what, lack of legal authority to bring a lawsuit.  Well, Congress said over the weekend and then yesterday and early this morning we‘re going to fix that.  We‘re going to give in this case these people a right to go into court and have it reviewed. 

BEINART:  In this one case.

(CROSSTALK)

SEKULOW:  Hold it.  Hold it.  That‘s right.  But Congress has the

authority to do that.  It might have been better—I think it would have

been better—if the House‘s original version would have passed and that

would have said, in all of these kind of cases, when you‘ve got things like

·         and they looked at the guardianship issue—and it was mentioned earlier—the existing husband now having another spouse of sorts and two children, that maybe he‘s not a disinterested guardian. 

The fact that been no—and this was interesting.  And Senator Frist said this.  There‘s not been a PET scan of this woman ever done.  So, when you say the state court had the facts, the state court judge here never has seen Terri Schiavo, never once laid eyes on her.  And you don‘t sentence somebody to death without seeing who they are.  And the federal Congress here said, you know what?  We‘re going to try to remedy at least here and get some input.  And that‘s what they did. 

SCARBOROUGH:  Rabbi Shmuley, let‘s talk about the ethical dimensions of this.  What‘s your take on it?  Here you have a young woman, again, who a lot of people say is in a persistent vegetative state.  What responsibility does her husband have to keep her alive, when he‘s claiming that she said, hey, if I‘m ever in that state, let me die?

RABBI SHMULEY BOTEACH, AUTHOR, “FACE YOUR FEAR”:  You know, I‘m amazed that Peter Beinart would say that, so long as Terri Schiavo expressed a right to die, that‘s the main issue here.  Of course it‘s not, even if she wanted to die. 

This is not a country where, if you want to commit suicide, they allow you to.  If someone wants to jump off a bridge, we stop them.  Kevorkian, Dr. Kevorkian, is in jail for life because he put to death people who wanted to die.  Terri Schiavo is not brain-dead.  Terri Schiavo is not on a respirator.  You cannot pull the plug on her. 

She lives off what you and I live on, Joe, food and water.  She just can‘t do it herself.  She‘s like an infant.  Now, as far as—or someone who is catatonic in an old age home.  You and I and so many people watching have grandparents in that situation.  What are we going to start to do, take people like Ronald Reagan, the way he was in the last years of his life, and stop feeding them? 

(CROSSTALK)

BOTEACH:  Reagan had no memory.  Reagan had no thought.  Reagan had no emotions.

BEINART:  I guess Shmuley Boteach is saying, then, that there should be no standing for living wills. 

I think, in this country, we have an understanding that living wills, which are the expression of what someone wants to do in the final...

SEKULOW:  Yes.  We don‘t have a living will here.

(CROSSTALK)

BEINART:  We don‘t, but the court decided.

(CROSSTALK)

BEINART:  We don‘t.  It‘s true. 

(CROSSTALK)

SCARBOROUGH:  One at a time.  Hold on a second. 

(CROSSTALK)

SCARBOROUGH:  One at a time.

BEINART:  If I can just finish.

SCARBOROUGH:  Go, Peter.

BEINART:  The court decided that even though there wasn‘t a living will.

SEKULOW:  A court.

BEINART:  And it was not overturned by the Supreme Court or the federal court.

SEKULOW:  A court.

BEINART:  And when the state of Florida tried to turn in—a court struck that down, too, said that we did in fact know what her wishes were.

(CROSSTALK)

SEKULOW:  In life and death—I think what Rabbi Boteach said is right.  When you‘re dealing with life and death here, how about cautioning towards life and say, you know what?  Let the federal court take a good look at it here.  The parents and the husband are in disagreement.  This woman‘s life is hanging in the balance.  We can‘t start...

(CROSSTALK)

BEINART:  And if the federal court...

SEKULOW:  Hold it. 

We don‘t get to starve people on death row with no food and hydration. 

That‘s what we‘re talking about here. 

BEINART:  And if a federal court makes the same decision, will you abide by that? 

SEKULOW:  Well, I‘m an officer of the court.  I have to abide what a court says. 

(CROSSTALK)

BEINART:  Well, because the hypocrisy here—the hypocrisy here is the claim that, in fact, that they will abide by the federal court decision. 

SEKULOW:  Well, hold it.  Hold it.

BEINART:  Well, we know that it has got nothing to do with a federal court.

(CROSSTALK)

BEINART:  ... outcome they want.

SEKULOW:  But all lawyers want an outcome they want, but Congress gave a specific grant of authority on jurisdiction, said you could hear this case, didn‘t say how you will decide it.  It will go up to—if this judge doesn‘t decide very soon on this whole case or the Court of Appeals, it could be landing at the Supreme Court of the United States in 24 hours.  So, this is a big case with huge ramifications.  And just to dismiss this, if there was a living will, yes, but there‘s not. 

BOTEACH:  You know, Joe, Joe, you kept on asking whether this is an issue for Congress. 

Let‘s just remember—and, here, Pat Buchanan is absolutely right.  Before Hitler came for the Jews and before he came for the gypsies, he went after the mentally infirm.  But nobody was outraged when he determined that some lives are not valuable and therefore there was no outrage when he began to apply that same label to other subgroups. 

I shudder for my country.  I shudder for this country, which is the guarantor of world freedom and democracy, that a helpless woman is being put to death for no other reason than she lacks our I.Q. level. 

SCARBOROUGH:  Pat Buchanan.

(CROSSTALK)

BUCHANAN:  Hold on.  It‘s my turn to speak. 

Look, the rabbi is exactly right.  There was a book written in Germany in 1920 about the right to do away with life unworthy of life.  And what happened in the 1930s, they took baby Nauer (ph) first, a baby about 8 years old that was retarded, didn‘t have an arm and a leg.  They asked Hitler, can we put the boy to death?  He talked to his doctor.  He said yes. 

Out of that came the Aktion 4 program.  They put 100,000 to death until a bishop protested.  And, Joe, let me tell you.  One of the leaders of the Aktion 4 program wound up as the commandant of Treblinka. 

SEKULOW:  Yes. 

BUCHANAN:  Franz Stangl.  Now, this is the road we‘re headed down. 

Congress is—your friend Smith who was on, congressmen, is exactly right.  If this is being done routinely, that people who are brain-damaged, people who are severely retarded, old folks who are senile are being put to death, that is cold-blooded mass murder.  And we ought to do something about it in the United States of America, if we‘re still God‘s country. 

SCARBOROUGH:  All right, thanks so much, Pat, Jay, Peter, and Rabbi.  We greatly appreciate you being in an explosive debate.  We‘ve got to keep talking about this tomorrow night. 

Now, coming up next, Michael Jackson is late again.  It looks like he just doesn‘t get it.  Or does he?  We have the very latest in a minute.  Talk about a segue.  How do you do that? 

And another segue.  Make sure to stick around for tonight‘s “Real Deal.”  It gets serious very quickly.  If the government had done its job to keep our kids safe, I think little Jessica Lunsford would still be alive today.  We‘ll tell you about that when we return. 

(COMMERCIAL BREAK)

(NEWS BREAK)

SCARBOROUGH:  Michael Jackson late again. 

Today, Jackson showed up late, looking weak and trembling.  I mean, can you believe this guy?  He‘s got money.  He‘s got employees.  He‘s got limos.  He‘s got publicists and he still can‘t get to court on time. 

And, once inside the courtroom, Jackson was seen quietly weeping.  Is Michael Jackson crazy or is his erratic behavior a defense strategy? 

With me now to talk about is defense attorney Courtney Anderson.  We also have Court TV‘s Lisa Bloom. 

Appreciate you all being with us. 

You know, Lisa, this is all I ask from my judicial system.  I want everybody to be treated the same.  In impeachment, Clinton lied before a grand jury.  We would have been thrown in jail.  In this case, Michael Jackson late three, four times.  If I were ever late as an attorney...

LISA BLOOM, COURT TV ANCHOR:  Right. 

SCARBOROUGH:  A judge might throw me in jail, especially in federal court.  But in this state court case, this judge is doing nothing.  He‘s a wimp.  What‘s going on? 

BLOOM:  Joe, it‘s outrageous. 

This is the fourth time, by my count.  It happened in pretrial proceedings.  Then there was the flue.  Then there was the backache.  And then there was today.  Everybody says what a tough judge this judge is.  Well, how many chances are you going to give this guy?  It‘s like a parent saying, next time, you‘re in trouble.  I‘m only going to give you one more chance.

SCARBOROUGH:  What did he say today?

BLOOM:  Nothing.

SCARBOROUGH:  I didn‘t think this guy was a wimp. 

BLOOM:  Nothing.  Nothing was said on the record today.  Everybody just went ahead with court as usual. 

Now, maybe behind closed doors, the judge said something, but nothing that was released to the media.  And clearly Jackson‘s bail was not revoked, because we would all know about that, absolutely no...

(CROSSTALK)

SCARBOROUGH:  Wait a second, though.  The last time he was late, though, the judge said he was going to revoke the bail. 

BLOOM:  Yes.  And then he didn‘t.

SCARBOROUGH:  We had all of this activity going on.  Everybody was saying, gee, this case is over.  The judge is going to nail him.  It happens again.  The judge does nothing. 

BLOOM:  Yes, preferential treatment.

SCARBOROUGH:  What‘s the prosecutor—what is the prosecutor saying about this? 

BLOOM:  The prosecutor...

SCARBOROUGH:  I would be so angry if I were a prosecutor. 

BLOOM:  That‘s right, absolutely. 

Look, the prosecutors haven‘t said anything on the record that I‘m aware of.  A lot of things are going on probably behind closed doors.  And that‘s a separate problem. 

But, Joe, the judge said last time said on the record, Michael Jackson‘s got to get here in an hour or I‘m revoking bail.  He didn‘t get there in an hour.  The judge nevertheless did not revoke bail.  And you mean to tell me that Michael Jackson is not getting preferential treatment because he‘s a celebrity?  You think a run-of-the-mill drug dealer or burglar would get this many chances?  Forget it. 

SCARBOROUGH:  You know, Courtney, I swore that this was going to be a Michael Jackson-free zone, that I wasn‘t going to do Michael Jackson stories anymore.  But this touches on hypocrisy. 

This is all about the fact that this guy is being treated differently than you or I would be treated because he‘s a big pop star.  I mean, you‘re a defense attorney, but what do you think about Jackson‘s behavior? 

COURTNEY ANDERSON, CRIMINAL DEFENSE ATTORNEY:  Yes, I have to absolutely agree.  And, certainly, I‘ve had the challenge of representing my clients in the past charged with felonies and misdemeanors.  And if they‘re one minute late, the consequences are severe.  They are quick to file...

(CROSSTALK)

SCARBOROUGH:  What do judges do?  What do judges do?  Let‘s say that you were representing a run-of-the-mill guy, regular Joe.  He‘s not molested a child.  Let‘s just say he wrote some bad checks and he‘s late to three or four hearings.  What‘s a judge going to do in your case? 

ANDERSON:  They‘re going to issue a bench warrant.  They‘re going to file a motion to revoke his bail.  They‘re going to issue a bench warrant.  They‘re going to arrest him and they are going to put him in custody for the rest of the proceedings, because, as you know, the taxpayer is who is footing the bill for everybody to be there and the court system to work.

And if we‘re all there ready to go and the defendant is late, well, that enrages all of us.  And, certainly, the judges are very tough on that.  I personally, with every defense client I ever had, sat them down at the very beginning of representation and laid out the rules.  And one of the most important ones is, you better be there early and on time and behave appropriately, because...

BLOOM:  And the whole idea of bail, if I might jump in, is that we can trust you to appear when you‘re supposed to appear.  Well, once you‘ve proven that that is not going to be the case, bail should be revoked.

Twice, Jackson didn‘t show up and nobody knew where he was.        Now, it turns out he‘d gone to the hospital for the flu and for the backache.  But I think the man is a flight risk.  And I think bail is a big risk the state of California is taking that Michael Jackson is going to show up at all. 

SCARBOROUGH:  Let me ask you both of you this question.  And we‘ve heard time and again that Michael Jackson isn‘t crazy.  He‘s crazy like a fox, that this is all part of an elaborate scream.  He appears to be breaking up, cracking up in front of all of us.  How in the world would that help his case in front of a defense—in front of a jury? 

(CROSSTALK)

BLOOM:  Go ahead.

ANDERSON:  Well, I think it could help his case, because I think a lot of what he‘s hoping is that the jury sees him as this unique, special person and it‘s OK because he‘s so unique and special to sleep with little boys, whether or not the molestation occurred.

They‘ve got to buy into this unique and specialness.  Otherwise, if he was an average 46-year-old adult engaging in the behavior he‘s engaged in, his case would be much more difficult. 

(CROSSTALK)

SCARBOROUGH:  Be in big trouble. 

BLOOM:  He‘s out of control.

SCARBOROUGH:  Lisa Bloom, is he crazy or crazy like a fox? 

BLOOM:  I think the latter.  But I think he‘s a man who is out of control.  He is out of control possibly with his secret drinking.

And that was testified to today, you know, the Jesus juice in the Coke cans, out of control with his spending, out of control in his appearance.  Who else shows up in pajamas or with his hair unkempt, as he did today?  He‘s out of control in many ways and that perhaps that supports the prosecution. 

SCARBOROUGH:  Well, you know, regularly, I show up in my pajamas to do this TV show.

BLOOM:  Do you?

SCARBOROUGH:  But nobody can tell. 

(LAUGHTER)

SCARBOROUGH:  Lisa Bloom, Courtney Anderson, thanks so much.

BLOOM:  I often suspected that about you.

SCARBOROUGH:  Yes, exactly.

I‘ll tell you what.  Really, this is so offensive, that Michael Jackson gets away with something that you or I wouldn‘t get away with. 

Anyway, tonight‘s “Real Deal” coming up, how the government helped to kill little Jessica Lunsford.  That‘s right.  The government helped by not doing what they should have done to that thug that abducted her, raped her, and strangled her. 

That‘s when SCARBOROUGH COUNTRY returns.

(COMMERCIAL BREAK)

SCARBOROUGH:  Up next, tonight‘s “Real Deal.”  Who is really to blame for the murder of little Jessica Lunsford?  That‘s when SCARBOROUGH COUNTRY returns.

(COMMERCIAL BREAK)

SCARBOROUGH:  Jessica Lunsford is dead, and it‘s the government‘s fault.  It‘s time for tonight‘s “Real Deal.” 

Now, let me tell you something.  Your child is not safe, not safe from sexual predators, not from lenient judges who let repeat sexual offenders prey on little kids, not safe from a criminal justice systems that is still more interested in criminals‘ rights than your children‘s lives. 

Now, the beautiful little girl we saw on our TV screens over the past few weeks had a tough nine years on this Earth.  Her family was dysfunctional at best.  And her father and grandparents struggled just to get by.  Her home life was tumultuous.  But the Jessica we saw smiling in all those images projected on our TV screens at home showed a beautiful young girl who rose above her tough circumstances and had an inner joy. 

But, you know, that joy ended on a cool night last month when a sexual offender named John Couey walked into her trailer, grabbed her, raped her and then killed her.  Couey had been arrested 25 times before and was a repeat sexual offender.  The question is, why was he still on the streets?  He was still on the streets because our criminal justice system is badly broken.  It‘s time to change it, or else our children may be next. 

And that‘s tonight‘s “Real Deal.” 

Hey, thanks for being with us tonight in SCARBOROUGH COUNTRY.  If you have any questions or want to see what‘s going on, send me an e-mail, Joe.MSNBC.com.  Love to hear from you. 

We‘ll see you tomorrow night in SCARBOROUGH COUNTRY

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

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