voice and tv for $34.90. comcast business built for business. >> that does it for us. thanks for watching. smerconish starts now. good evening, i'm michael smerconish. we begin tonight with breaking news. we are just hours away from the malaysian government publicly releasing a preliminary report on the investigation. it is 9:00 p.m. here in new york city but it is already 9:00 thursday morning in malaysia. and this is the day that the families of the 239 people on board flight 370 are finally going to get some answers on what may have happened to the airplane. they have been demanding answers since it vanished. we've also learned that

bangladesh is sending two of its navy ships into the bay of bengal to investigate claims by an australian firm that they may have found the wreckage of an airplane. although it has not outright said it was the missing plane. and we bring in david souci, author of "why planes crash." david, i get that it is normal to do this, but would a report be issued? >> you're talking about the preliminary report required by international civil aviation organization. and typically it is released. what is unique about this particular situation as reviewed by the jacc by another international organization and by the malaysians before it gets released. what i hope is that it has great information in it about how it is transferred from one control center to the other control center. what i worry is that they redacted it to one level that will just create more

frustration for the families. >> well, what are the standard elements if this were a typical kind of case? what would you expect to see? >> it would be just facts. just the facts, nobody is trying to speculate on anything. but the unique thing here is that typically in that report it will talk about aircraft damage, what has been damaged, how it was damaged. where it entered the water for example or how a particular piece of the aircraft had been distorted by something. it is very, very technical in nature in most cases. in this case they don't have an aircraft so they don't know what the aircraft damage is. so there is a lot of boxes and checked boxes, who is on the aircraft, the crew on the aircraft. the pilots' flight numbers, license numbers, the aircraft flight number but the pilot's license numbers, the air traffic controllers, the people who did the handoffs, those things will probably be redacted for their own privacy and security.

but usually it is a fairly mundane report. >> here is what i'm not hearing from david souci that we can look forward to a law enforcement investigation. we're not going to hear about the co-pilot or who may or may not have been in the jump suit or what is clear about the passengers themselves? >> that is right, the criminal investigation is separate and is supposed to be protected. it is never in these reports. acao has no authority to release police, criminal, fbi any reports in that way. so any type of criminal investigation will remain silent until the investigation is done. so there won't be anything in there. and that will have a lot to do with what is redacted. they may be clues from what we can draw from that. so if there was very specific information you can conclude there was a criminal investigation going on, with whatever piece is redacted.

>> david, we're anticipating the report from the malaysians. in fact, this is the report from the malaysian prime minister that told our own richard quest was soon to be released. this is not coming from the australians, am i right in saying that? >> yes, that is correct. it is the report required of the country of registry. therefore, the country of register or the operating company, either one, is that country that has to do these reports. and they did do these reports. now remember these reports were very late, which you would expect in an investigation of this size. but it was very late and i was very impressed with how richard quest stayed on the prime minister until he was admitting that yes, we will release these reports. i don't think this would have happened had he not been cornered in that way. that was a very good job. >> to what extent do you think boeing would be involved in the preparation of the report that is about to be released? >> boeing will be consulted on it.

but they don't write a report. they may write a section of the report if there was something typical. but they won't be involved until there is a piece of the wreckage, some piece that has to be identified or a part verified. that is when boeing would come into the picture. remember, at this point this is mostly an operational investigation. what happened, who did what to get it there. we still don't have any wreckage so it is hard for boeing to make any kind of participation at this point. >> i'm also concerned with that notification by text. you'll remember what i'm speaking of, it has probably been 40 days since the public relations nightmare took hold. would you expect with regard to this report that the families would be given some level of executive briefing before it is made public to the world at large? >> always, always, always. every investigation i have ever done, you speak to the families privately before you go to the news public.

before you send out a mass text message. it doesn't matter what aircraft or how many people are involved you take the time to do this right. now, we have the family assistance act or protection act here in the united states where that would not happen because they are regulated to do so. but over there you would think that they would have taken care of that or taken note of that but that didn't happen and it is really unfortunate. >> colonel michael kay, our cnn analyst and a frequent guest on all of our programs talking about mh-370. joins us by phone. what is it michael that you most want to see in the report that is to be released today in malaysia? >> there is a number of things, michael. i am just not sure we're going to get it. the preliminary report just gives us facts, that is what it is mandated to do. it doesn't give us conclusions or probability or cause or analysis. now, about four or five days ago i was in the mindset that we were not going to receive inmarsat analysis, or anything really to do with radar. but i think my mind has been changed on that just because of some of the evidence that we

have been seeing coming out over the last couple of days. and i'm hoping that really the confidence in the inmarsat data by the analysis and also by malaysia, which is the independent investigator in charge, i hope that there will be a confidence growing that the information is fairly credible and sufficient to be able to go public especially in part for the families. >> david souci, what of the report that the planes dispatched two navy planes to the bay of bengal, in the report that could be in some of those waters? i think it is about time. the malaysians have done a lot of good trying to restore faith with the families saying we'll release the report by having the interview. it was doing great things forward. and as soon as the report came out they blanketly dismissed it. so everything they do to step forward with the trust, they take a step back. so i'm really pleased that

bangladesh is doing that. i don't give it a lot of credibility myself. that is not the point. the point is the families do. you need to investigate that for their sake. >> michael kay, the malaysian government has to know whatever credibility they have left in the world stage in this regard is on the line. you would like to think they looked through the documents and fact-checked everything they're about to release. because you would think there would be every reason for other governments to step in and take control of the investigation. >> yes, i think what we have to do is remember that malaysia is coming into a new phase of the investigation in terms of actually calling themselves an independent investigator in charge. and now, the whole investigation, comprised of several countries, you have the ntsb, the accident investigation branch in the u.k., the atsb, and china, as well. you would like to think that all five or six countries who have actually seen the preliminary

report, they agree with the analysis in there and what facts will be released. i also think we should take our hats off and give due credit to angus houston, as well. he actually took the investigation from the early days because it lost a lot of credibility because of what the malaysians had been doing. he has taken it to a place where people are confident in the transparency. he has been fairly open with everybody. i think we are in a different phase of the investigation, but as david souci said early on i think we need to look at other avenues, be very open, let's corroborate the evidence, let's look at the radar, off the coast. what is on india's primary radar and bangladesh's primary radar. let's try to get evidence that corroborates other areas where it could be if only to eliminate

it. >> gentlemen, as you point out very big moment today in malaysia. and the minute the report is released we'll have it here on cnn. david souci, lieutenant colonel michael kay, thank you both so much for your expertise. and now that nba commissioner adam silver has banned the owner, the question is does forcing a sale set the bad press den the? the execution that went horribly wrong. does it really matter how a death row inmate dies. >> back before they closed the curtain, he said yes, he had full upper body movement and was able to lift his head and shoulders from the gurney. >> he was struggling to talk, but those were the words he got out. man, i'm not, and something's wrong.

sea captain: there's a narratorstorm cominhe storm narrator: that whipped through the turbine which poured... surplus energy into the plant which generously lowered its price and tipped off the house which used all that energy to stay warm through the storm. chipmunk: there's a bad storm comin! narrator: the internet of everything is changing how energy works. is your network ready?" will you be a sound sleeper, or a mouth breather? a mouth breather! [ whimpers ] how do you sleep like that? well, put on a breathe right strip and shut your mouth. allergy medicines open your nose over time, but add a breathe right strip and pow! it instantly opens your nose up to 38% more. so you can breathe and do the one thing you want to do -- sleep. add breathe right to your allergy medicine. shut your mouth and sleep right. breathe right.

add breathe right to your allergy medicine. dad. how i don't know.ere? (speaking in russian) look, look, look... you probably want to get away as much as we do. with priceline express deals, you can get a fabulous hotel without bidding. think of the rubles you'll save. one touch, fun in the sun. i like fun. well, that went exactly as i planned... really? it really made the difference between a morning around the house and getting a little exercise. unlike the bargain brand, depend gives you new fit-flex®, our best protection. it's a smooth and comfortable fit with more lycra strands. get your free sample at depend.com.

add brand new belongings from nationwide insurance... ...and we'll replace destroyed or stolen items with brand-new versions. we put members first. join the nation. ♪ nationwide is on your side ♪

it is an exclusive club, the teams that are members of the national basketball association, commissioner adam silver wants l.a. clipper's owner donald sterling kicked out of it. and he is going to ask the other 29 other owners, members of the board of governors to ask sterling to sell his team. some have indicated they're on his board. but others believe that forcing his hand may set a dangerous precedent on team ownership. and that is our unfinished story. either way, one thing is certain tonight, to his fellow owners, donald sterling is now the

equivalent of the third rail. too dangerous, nobody wants to be seen with him. and while we know he made ugly racist comments we have to consider this question. is forcing him to sell the clippers going too far? he might be a creep, but forcing him to sell may be a bit far. and also with us, former nba player cedric maxwell. you said it raised troubling issues, what are they? >> we're glad out of this ugliness we struck down the racist guy who seems to have got his come-uppance, one, the recordings were probably illegal and certainly a violation of his privacy. two, there is a mob mentality, and when there's a mob mentality and we like the result, we don't question it. it does seem like there was this ball rolling. this is essentially a thought crime. and the thoughts were terrible,

and you can't pay it with his actual action, but we're strike out at what things he said last week, and my biggest problem is there is no internal soul searching by the nba. it seems like they're acting like we cauterized this wound and therefore it is gone. but what about when he was fined by the government for saying that black people smelled and attracted vermin. and there was absolute silence on the issue by the nba owners. we're not seeing any grappling with the past, we're just seeing striking out in the present. >> you're saying the two may have been blended together, the housing issues in the past where apparently he acted on his racism. but i hear you say, in this instance, where's the proof those sickening thoughts were acted upon in his capacity as an nba owner. >> when there is a horrible instance of actual discrimination with real life victims we have to drive out of

society, zip, no one said a thing. >> cedric maxwell, thanks for being here. respond to what you just heard from mike? >> one thing i agree with, i do not like how the information was gathered. it was horrible. but at the same time i am not letting off sterling for that. because you look at the things which were said. the commissioner said it right. you know, these things have gone on, gone in the public now have you so to deal with it. i don't think that one thing the commissioner had to do was appease the players in the league and then appease the environment which was around that. you could not have him in this league if in fact you were going to go on further with your game. so i do agree with the commissioner, but at the same time i do agree i do not like the way the information was gathered in the first place. >> i am going to speak to that at the end of this broadcast tonight in a closing commentary. you know, mark cuban seemed to be headed down the road that you

have articulated but then he quickly backed off. i guess in the face of the snowball that you researched are any of these owners going to make the points you stated? >> it would seem that silver got them in line. one day you have cuban giving an interview, and what if they don't like what i say or what if somebody records an owner. look, i think cuban is a thoughtful guy, i know he is generally a libertarian. i'll give him the benefit of the doubt people are allowed to change their minds. i think that is a good thing. or said maybe this is not a hill i want to die on. this ball is rolling. we're going to get sterling out. although he might sue. he might get an antitrust injunction. he may play this out for so long, that he won't be divested of the team. the optimal thing the commissioner could have done, i don't think it's realistic. i understand what he does, what his powers are.

i think he should have fined him or suspended him and held over his head this idea that i could fire you. but i think he should have tried to convince him to quit and let the public speak and players speak. and just be this big backlash that may have devalued the franchise come time to sell. >> cedric, you have been in that nba locker room. is there the possibility that now there is a lot of analysis of what gets said player to player. that if the n word should be dropped even in a casual sense from nba star to another it will be looked at in a whole different way now. >> well, it is scary, really. you think about it. you think about a job. if either you or i were miked all the time and somebody came up about a conversation we had, we probably would be fired. we would not be around at all. the thing i liked about the way the new commissioner went was the fact he put the onus on the owners. and he said look, i don't have enough votes right now but what i'm going to do is put your foot to the fire and its going to be owner to owner to owner.

what owner is going to say no, no, i want to have him around. what owner is going to say yes, it is a public battle. i tell you what, one thing you will see right now is almost political suicide if you are an owner and you don't try to get rid of donald sterling. >> no doubt about it. and that is what you were referring to. nobody could stand up in this environment and frankly you're on the outside you can make these points. but no one who is attached to the system frankly could make these points and maintain their job. >> i think not and i think that is actually kind of the shame of it. i mean, this is a way for them to take a stance that makes it look like hey, we're striking out against racism. but racism is so endemic among the owners, they can pat themselves on the back and say see, we're against racists. i don't know, are they? >> see, cedric, i'm shocked about what went on in the past. the largest settlement discrimination case of its kind. how in the hell was that not a bigger obstacle for him before all of this occurred?

>> well, i think that really is true. but i think that really the nba looked for that real smoking gun. the smoking gilbert was him going on saying look, i don't want black people at my game. one thing i was a little confused about was the fact that you know, not letting sterling off again, but i was a little surprised that he did not use the n word in this conversation he had with his girlfriend. i didn't understand. so many things kind of puzzled me about this. let me make sure of this. i have to say that i am definitely with the commissioner. i think he did the right thing. i think it appeases a lot of things. but at the same time i would have to say that donald sterling to me is not going down without a fight. this is not going to be the last thing you hear from donald sterling. >> got it, mike pesca, thank you, cedric maxwell, a privilege, thank you both for being here.

hey, think about the phone calls you made so far this week. would you be okay with all of them being splashed across the "the new york times"? sterling is an ass, we agree on that, but the very public recourse for his private conversation may set a dangerous precedent for the rest of us. really... so our business can be on at&t's network for $175 dollars a month? yup. all five of you for $175. our clients need a lot of attention. there's unlimited talk and text. we're working deals all day. you get 10 gigabytes of data to share. what about expansion potential? add a line anytime for 15 bucks a month. low dues... great terms... let's close. new at&t mobile share value plans. our best value plans ever for business.

first the cookie at check-in. then a little time to kick back.

earn double hilton honors points with the 2 "x" points package and be one step closer to a weekend break. doubletree by hilton. where the little things mean everything. female announcer: sleep train's interest free ends sunday. it's your last chance

to get three years interest-free financing on beautyrest black, stearns & foster, serta icomfort; even tempur-pedic. plus, get free delivery, and sleep train's 100-day low price guarantee. but hurry! sleep train's interest free for 3 event, ends sunday. ♪ sleep train ♪ ♪ your ticket to a better night's sleep ♪

did v. stiviano break her the law in reporting her conversation with sterling? stiviano's attorney claims he knew he was being taped but we called the los angeles district attorney's office and asked if she is going to be investigated for privacy violations, and a spokesperson replied and said quote, i don't have any information that that would be the case. joining us is the professor of constitutional law at the university of baltimore and author of "ghosts of jim crow, ending racism." in post racial america. and also, consultant and author of american individualism, margaret hoover. margaret, should there be an investigation by the district attorney's office? >> sure, emaybe somebody broke the law, it would be fair to look into it. you know we can't do an interview with anybody without asking to tape it. that's the law in california. i think that is certainly fair game.

the issue is, does that make any of this moot? of course it doesn't. character is what happens when nobody is listening or watching. >> he is still a racist, nobody is here offering a defense or excuse, but as i listen to the tape back and forth between them. there is something else. they are two very feeble, needy people is the way i was reading those tea leaves. >> that is fine, in the sense that you know the kids these days know that anything they say is fair game. there are these tools everywhere. that is why they go to school. and pictures are taken. they know not to take pictures at parties and put them on facebook because they could see them at school. this is why maybe an 80-year-old billionaire has not woken up to, that these devices are opened up to people. that who you are in private is who you are in public. you have to know the character is who you are, regardless of who is listening. >> professor, ironic that we're having this conversation on the

same week that the supreme court is discussing whether a warrant is required for law enforcement. react if you would, to the privacy implications of the donald sterling case. >> happy to do so. this is a free speech marketplace dispute. donald sterling is free to say whatever he wants to say. no matter how outrageous, racist those comments may be. but also nba players and fans are free to respond with speech in response to his comments. and what you're dealing with is, as long as the government doesn't come in, there really is no constitutional problem. so the only harm that occurred is really to the nba brand. and i think that is what people

are most concerned about now with respect to the privacy issue. >> is that how you look at it, that this was a market response. the private entity, the national basketball association, you know, cleaned and policed its own house. >> 100%, i mean, this is not the government, the nsa listening in to him saying you're a racist. this is not a potential thought crime as your previous guest said. this is something somebody said that they're being held accountable for in a very real way in the marketplace but not by a government authority. so fair game. >> professor is also comes on the heels of secretary of state john kerry having been recorded as putting israel and apartheid in the same sentence. and there's been a lot of blow back because of that. but he was behind closed doors with world leaders and it was recorded. i guess my question is should any of us have any expectation of privacy in 2014? >> well, i think in 2014 clearly your expectation is somewhat reduced. but california is still a two-party state where you must have consent.

so donald sterling should have given his consent. and if he did not give his consent to this then they may have some -- he may have some remedies in the court. the problem that sterling has, though, and the problem that many americans have in these situations is that the information is now out there. the harm has been done. and so sterling's remedy may not do anything to his reputation. because the nba brand has been harmed by what he said, by the racist comments. >> you think political correctness will keep the l.a. d.a.'s office from taking a look at this? >> i don't think they can. by the way, it is a little different if you're talking to the free world, in a room with leaders talking about israel and a domestic dispute. >> or mitt romney at a fundraiser. >> i mean he was -- this is a public event talking to supporters, where the implications are very different than private enterprise.

>> thank you both for joining us. we know that sterling is a racist, but is v. stiviano a criminal. could that tape that banned sterling for life put her in jail? and donald trump is in the news again. seems he thinks he can run the country because he can run a country club. we have activities. and i couldn't do any of that. any time anything brushed up against this rash it would seem like it would set it on fire again. it was the worst pain i ever had. that's why i got a new windows 2 in 1. it has exactly what i need for half of what i thought i'd pay. and i don't need to be online for it to work. it runs office, so i can do schedules and budgets and even menu changes. but it's fun, too -- with touch, and tons of great apps for stuff like music,

'cause a good playlist is good for business. i need the boss's signature for this. i'm the boss. ♪ honestly ♪ i wanna see you be brave but add brand new belongings from nationwide insurance... ...and we'll replace destroyed or stolen items with brand-new versions. we take care of the heat, so you don't get burned.

just another way we put members first, because we don't have shareholders. join the nation. ♪ nationwide is on your side ♪

hey, time for headlines that got the story half right. three political ones tonight, first up, from the milwaukee journal sentinel, federal judge strikes down wisconsin's voter id laws. the federal judge said the state lacked the requisite rationale for imposing voter id requirements. as a matter of fact, the judge said that in person, voter impersonation in wisconsin not existent. and still 300,000 people lacked the requisite voter id to allow them to vote. they're lower income and lower educated, the judge found that this case violated a case of

equal prosection. the headline here said that wisconsin strikes down voter id law, what i would have written, still searching for problem. and number two, from politico, how the federal insures botched the not so jolly rancher. how they botched the bundy cattle roundup. the media has moved on from cliven bundy because now we have donald sterling to talk about. but this story is really worthy of all of our time. i read it and said thank god there wasn't bloodshed with regard to this guy and all of those who he attracted. and there were a lot of reports, not the least of which the federal officials bungled a round-up of the livestock. one said we didn't even follow our own protocols. we were all very fortunate that nothing else happened with cliven bundy. you remember the headline on this story? the headline that said not so jolly rancher, how federal

officials bungled it. my favorite, donald trump says i would have said, mr. bundy. this land is not your land. and my favorite. it comes from the daily mail. donald trump says he will fix this country just like he fixed his country club. it is true, the donald told the mail that his credentials that qualify him for running the highest offers in our land is that he fixed his country clubs and now he can fix the country at large. and he says it is absolutely possible he will run for president in 2016. you know how we can recognize we're getting close to a presidential election in the united states? it is when the donald again floats these trial balloons. and as was pointed out by business insider he truly has been doing it for a quarter century plus, more than 25 years. i remember at the white house correspondent dinner just what, two years ago when president obama weighed in on the donald's qualifications to be our chief

executive and he gave him a tip of the hat. he noted that the donald had recently mediated a dispute on celebrity apprentice as to who screwed up on the men's cooking team. was it little john or meatloaf. you remember the headline. the headline that says, donald trump will fix the country just like he fixed his country clubs? no, i have a better one, trump busey as in gary busey in 2016. clayton locket was put to death last night for a vicious murder, but the execution didn't go as planned. in an exclusive interview, the inmate's lawyer who witnessed the execution will tell us exactly what he saw. >> it almost looked like he was trying to sit up on the table. he was muttering words that were incomprehensible. wife: mmmm husband: these are good! marge: the tasty side of fiber. from phillips.

♪ ♪ ♪ [ male announcer ] great rates for great rides. geico motorcycle, see how much you could save. everything looking good. ♪ velocity 1,200 feet per second. [ man #2 ] you're looking great to us, eagle. ♪ 2,000 feet. ♪ still looking very good. 1,400 feet. [ male announcer ] a funny thing happens when you shoot for the moon. ahh, that's affirmative. [ male announcer ] you get there. you're a go for landing, over. [ male announcer ] the all new cadillac cts, the 2014 motor trend car of the year.

[ guy ] roses are red, i'm glad i'm with you. this weekend away was long over-due. [ female announcer ] be a weekender at hotels like conrad and hilton. book now at hiltonweekends.com.

the state needs to be certain of its protocols and procedures for executions and that they work. for that reason i have been asked last night for review of the department of corrections execution protocols, after consulting further with the department of correction's

director robert paton, we agreed that an independent review of the department of corrections procedures would be effective and also appropriate. >> governor mary fallon of oklahoma is focusing about the botched execution of the oklahoma defendant, clayton locket. a convicted murderer and rapist. he was supposed to be put death with a cocktail of three drugs. after the first drug was given something went very wrong. the drug did not work as it was supposed to and eyewitnesss say that locket was still awake and moving. officials lowered blinds preventing anyone from seeing what happened next. they report that lockett subsequently died of a heart attack. a second inmate who was scheduled to be executed, officials put that on hold. i spoke exclusively to dean sanderford, who witnessed the execution. and madeleine cohen, attorney for the second man who was scheduled to die.

mr. sanderford and ms. cohen, thank you for being here. i think our viewers would be interested to learn why your respective clients were on death row. am i correct that your client was convicted of binding an 18-year-old with duct tape, making her watch and dig her own grave? then shot her and buried her alive? is that a fair accounting? >> that is fair. she was 19. >> 19 years old. and ms. cohen, your client, charles warner was convicted of the rape and murder of his girlfriend's 11 month-old daughter? >> yes, that is accurate? >> mr. sanderford, what did you witness? >> when they pulled the curtain up, mr. locket was already stretched out on the gurney, the iv line was attached. he was covered with a sheet so

we couldn't see them. when the execution began, it went probably how it was intended to. they started with the first drug. his eyes started to close. he got very sleepy looking. and about nine minutes in, a physician announced that he was unconscious. the warden then announced he was unconscious. and i believe at that point is when they started to give the second two drugs and that's when things started to go awry. soon after that, mr. lockett started twitching. the twitching started getting worse over time. it almost looked like he was trying to sit up on the table. his eyes opened at the time, muttering words that were incomprehensible. but it looked like a man coming awake after the inducement of a coma for surgery or something like that. after about four minutes of that it was just getting worse and worse and they dropped the curtain and we didn't see anything else after that.

and ten minutes after that, the director of the department of corrections came in and said that they were calling off the execution, and saying it was an execution, and that made me believe that mr. locket was probably still alive. and that they were going to try to probably keep him alive. and it was only 20 minutes later when we were essentially kicked off the premises that we learned he died of a heart attack. >> ms. cohen, what does the future hold for your client? >> well, the first thing that needs to happen is an independent investigation needs to be conducted to determine what happened to clayton. that is not an investigation by a member of governor fallon's own cabinet. that needs to be a truly independent investigation by a third party entity. and we need complete transparency on oklahoma's execution process, including the drugs and their sources. we will be taking further legal action to prevent any executions, particularly the execution of charles warner who

is at most immediate risk until all of these questions are answered. >> i noted on my radio program today by way of example that "the new york times" had big coverage of this story as do all media outlets in the united states. but the "times" story was 31 paragraphs long. it took until paragraph 16 to get any kind of a representation of what either of your clients had done to warrant a trip to death row. and it was dealt with in very short order. in other words, from my perspective it seems like the coverage is today so much slanted toward what happened last night and what not that which happened to place each of these men on death row. >> you know, i think that is certainly true of the coverage that is going on right now. but if you take a wider view, most of the coverage in mr. locket's case has been about his crime. >> in many ways that is one of the problems about the death

penalty that it keeps the spotlight not on the victims, and on maybe the families and their need for closure and for healing. but on the process. and on the prisoners for many, many years. >> but many the response to that is because the process seems open-ended. it goes on for decades. there is a case with which i was involved in pennsylvania, it went literally on for 30 years without any closure or any resolution. >> which is another problem with the death penalty. and the way to speed it up faster would be to throw the constitution out the window. i don't think we're quite ready to do that yet. >> well, i'm not advocating that. madeleine cohen, thank you for joining us. dean sanderford. let's be perfectly clear about clayton lockett, he was a seriously bad dude, no matter how we feel about execution. did his botched execution amount

to torture? let's talk with dr. kaplan, first, try to convince me that i should care about either of these two individuals. >> i don't care much about them. what i want you to care about is if the state is going to kill people it has to do it without torturing people. in other words, as strange as it may seem, michael, the ethical issue about letting these guys suffer is not oh, that we're so concerned about somebody who buried alive the 11-year-old is that the dignity of us killing them, we don't torture people, we just eliminate them. and if we can't do it in a humane way, we can't do it without them suffering, it's us that has a problem. >> okay, we clearly can get it done though. where is jack kevorkian. we have three states now with lawful assisted suicides. >> we have medicines. >> this is strange too. you think about the death penalty, we went to injection, it was supposed to be humane. doctors have slowly removed

themselves from lethal injection. they say it's unethical. someone's trying to give this guy an iv. it popped out or penetrated the vessel. you don't have the right expertise, this isn't the right way to do it. if you want to do it we have to get away from medical expertise to get it done in a humane situation. >> you'll think it's in jest, wouldn't a firing squad take care of that? >> a guillotine. brewing up something in the kitchen, i've never tried this before. >> i read the first story i said, this guy raped an 11-month-old girl, how horrific. >> and i'm sure there are people out there saying, really? he suffered? could you have extended that further? i mean -- but the point of

capital punishment is, taking a life, we have to justify that, we're letting our legislators do that, and we commit not to torture them. it's not that they weren't bad guys, and the impulse is there to make them suffer. execution, if it's going to stay legal. if, i think it's dying. if it's going to stay legal, it's got to stay that way. >> what do you think happened? >> i said in the intro the medication didn't work. i'm not so sure that's -- i think they couldn't hit the vein in the way they needed. >> it sounded like the vein -- they pushed through the poison, which leaked into the rest of his body. they didn't get him enough, but it ultimately caused a heart attack. they partially poisoned him i suspect. >> i get what you're saying, that fewer medical practitioners are willing to be involved in the process. season the there also something going on vis-a-vis the medications that are used where the europeans have said, hey, we

no longer want to be involved in this process, and, therefore, we're not going to allow our meds to come into the united states if that's how they're going to be utilized. >> it reminds me of the abortion controversy. you can't get it illegal so you chip away at it. doctors say, we're not going to participate, you know, you have so many obstacles here. let's face it, the death penalty is on death row. i mean, you're chipping away at it, i don't know if it's going to be able to endure. >> might this case represent the death of the death penalty. you heard the lawyer whom i interviewed. he has this eyewitness account, and people who don't take the time to find out, well, what went on with these two individuals, all they hear is that, this is barbaric, we have to end it. >> a botched win in ohio. another execution recently. it's in trouble. i'm not saying pro or anti-the death penalty. if we can't get it done

efficiently, reliably and without being cruel, it's going to fade away. >> it seems to me we could get it done. >> you can. >> but if the people want it, we shouldn't waive the white flag, because this thing was mishandled? >> i would agree with that. you have to be transparent, you have to make the protocol. the first time to try your new drugs is not during the execution. >> they should have left their curtain up. they got themselves in hot water by trying to hide what was going on. her lawyer says that v. stiviano recorded don sterling with mutual consent. what was her motive? and why does it sound like she was cross examining him. (music) defiance is in our bones. defiance never grows old. citracal maximum. calcium citrate plus d.

highly soluble, easily absorbed. if you have a business idea, we have a personalized legal solution that's right for you. with easy step-by-step guidance, we're here to help you turn your dream into a reality. start your business today with legalzoom.

but add brand new belongings from nationwide insurance... ...and we'll replace destroyed or stolen items with brand-new versions. we take care of the heat, so you don't get burned. just another way we put members first, because we don't have shareholders. join the nation. ♪ nationwide is on your side ♪

trwith secure wifie for your business. it also comes with public wifi for your customers. not so with internet from the phone company. i would email the phone company to inquire as to why they have shortchanged these customers. but that would require wifi. switch to comcast business internet and get two wifi networks included. comcast business built for business.

one last thing. here's what's most important about donald sterling less anyone confuse what i'm about to say. the clippers' owner said appalling and indefensible things that were captured on tape. let me say it again. the man's words were inexcusable. yes, you may have a legal right to conduct himself that way in private but i think adam silver was right to ban him from basketball. we clear on that? okay. having listened to the tape several times, i have got to say that i am struck by his enabler. there are many questions outstanding as to the circumstances that brought his views to light and i'm hoping we get some answers. like who rolled the tape? who knew the tape was being

rolled? and who released the recording? those are just a couple of the things that i'm still wondering. also, is an investigation warranted by the los angeles county district attorney's office? you know, the woman whose voices heard among sterling is being sued by sterling's wife of 50 years because the wife believes that marital or community property was used to buy the lady a $1.8 million duplex, a ferrari, three bentleys. a range rover plus over $240,000 in living expenses. in a complaint filed in march, the woman known as v. stiviano, among other things, quote, engaged in conduct designed to target, befriend, seduce and then entice cajole, borrow from, cheat and/or receive as gifts transfers of wealth from wealthy older men whom she targets for such purpose.

by now you know how ugly it got on tape from sterling. >> yeah, it bothers me a lot that you want to broadcast that you're associating with black people. do you have to? >> you also associate with black people. >> i'm not you and you're not me. you're supposed to be a delicate white or delicate latina girl. >> that's indefensible. but here's what i want to know, who of mixed race heritage herself would sit and listen to that racist diatribe and respond by saying this? >> i'm sorry. is there anything that i can do to make you feel better? >> no, you can never make me feel better. you're just a fighter. you want to fight. >> i'm sorry. >> i'm sorry, too. >> i wish i can change the color of my skin. >> she's sorry? she baited him and goaded him almost as if she was painstakingly creating a

transcript. one more time, for the record, what sterling said was racist and despicable period. but the fact that this conversation reportedly went on for over an hour, is itself telling where the proper response was for her to slap him and then leave. i'm michael smerconish. i'll see you back here tomorrow night. "cnn special report" starts with right now. this is a "cnn special report." i'm don lemon. and tonight i want to have a conversation about race and how we talk about it. first, listen to donald sterling. >> if you don't feel it, don't come to my games. don't bring black people and don't come. >> now listen to cliven bundy. >> i've often wondered, are they better off as slaves? picking cotton? >> their words are clearly indefensible but it's not just white men of a certain age. what about paul ryan talking about so-called inner city men