>> "smerconish" starts for you right now. hello and welcome to the program. i'm michael smerconish. we're focusing on a black man dead at the hands of police. today i've got hard questions you may not have heard. growing resentment among police officers, have they become the villains instead of the heroes? as the country takes to the streets to say no more cops say their hands are tied as the crowds grow larger so does their anger. the cops ask a question, what are we supposed to do? if the terrible tale told by the choke hold tape wasn't enough for a grand jury, can it be enough for federal charges? i'm not sure we'll ever see this case get made, and i'll talk to one of the smartest judges, a former cop, about what it would take to get the feds to act. plus, stolen valor. the shocking video of a pretend war hero and the real hero who confronted him and then shared the story with millions, all

that and a lot more. let's get started. up first, a case of rape that may instead be a hoax. the university of virginia has been rocked in recent weeks by an explosive article in "rolling stone" about a woman named jackie who tells a terrible story of a gang rape at a fraternity party. so terrifying was the story that the university immediately suspended all fraternity activity and held crisis meetings to deal with the scandal and the fear that spread through the campus. the university has had a troubled history with reports of sexual assault, but this highly questionable account sparked a national conversation about how badly the school had handled the problem, and at least some of the harsh criticism it has receive made have been unjust. i interviewed the journalist who wrote the story on my radio program, her name is sabrina erdely. listen to what she told me last week. >> i'm gleaning from what you wrote and the intonation of your voice that you buy it, you

believe it. >> yes. i mean, at the end of the day you know, it is you know, i wasn't in that room. so i can't really know what happened. but everything about jackie is entirely credible. i put her story through the wringer, i talked to her friends, all of the people she confided in. her story is very consistent, she is clearly been through a tremendous trauma and i don't doubt that something happened to her that night. >> turns out the fraternity in question did not even hold a party on the night the woman alleged this incident occurred. i began asking questions the moment i tread story and so did journalist eric womenpell of "the washington post." he joins me now. from a journalistic standpoint what troubled you from the time you read the story in terms of what level of fact checking had taken place? >> thanks for having me on. the thing that bothered me is something you find in the are

very best journalism, a reproduceability standard. i found almost nothing in the story that i could hang onto or someone i could call or a document i could cite or an authority i could say go to and say is this true? there was nothing, very little in that that i could hang onto and if i chose to, basically confirm the story on my own terms. "the washington post" today came out with a story saying that you know, this "rolling stone" -- these allegations look shaky. and they had to do an enormous amount of reporting to do that. >> in your own blog, your coverage of this issue, there was a paragraph that you wrote which questioned how hard the "rolling stone" journalist had worked to get the account of the alleged perpetrators on the record. i remember your language. you said something like use a fax, send an e-mail, use ups, none of those means were done it seems. >> turns out they didn't do the

slightest bit of effort to get in tornado watch with the accused, indeference to the accuser. to the victim. and i understand being sensitive to the victim, that's very important. however, it cannot prejudice or hamper your own reporting. if the covenant or the agreement is such that you can't nail down the story by other means then you don't run the story. >> i think it's also been acknowledged by the author of the "rolling stone" piece that she truly went looking for a story of sexual assault on an american campus. >> that's correct. she shocked around several cam pulses and she landed on uva because it's a southern place and this is a good place to sort of work in her reporting about sexual assault on the campus. and clearly, you know, the thing about the story is that there are segments of that story that really do talk about serious problems. there is another victim cited in the story, stacy, she suffered a

horrific assault. and the university according to the story did not handle it well. you know, that story isn't getting talked about much because the lead of the story was this gang rape that involved nine men. so, and that has eclipsed everything. it's a real, real tragedy that this investigation by rolling stone has been undone by their own incompetence and bias. >> in part that the reason perhaps that so many were so willing to buy into this narrative is because there have been real instances, that have taken place and consequently when we heard this we thought well, it seems to fit the pattern. >> absolutely. and you know, and she cites statistics saying that rape is more common among fraternity pledges, she cites other statistics about uva and indeed, the problem across the country

is outrageous. and all of us who have daughters need to take heed of all of this because it is one of the country's biggest problems right now. these are places that should be protecting our children, and they are not. >> you know, by the same token and i agree with everything you just said but we can't lose our common sense when someone steps forward either. i got such a workout from members of my radio audience because i asked some fundamental questions about this at the conclusion of the interview i did with the journalist and people found me somehow desire respectful of women for asking. i was trying to bring the perspective of someone who lived in the fraternity saying i think it's strange to think that seven guys, nine guys as a rooipt of initiation would have raped this woman behind closed doors while a party was going on. erik, thank you. appreciate you reporting on this. >> thank you for having me on. >> whether the article is completely accurate or good journalism reality is that sexual violence is a serious

issue on the nation's campuses. but the sad truth is that many victims are afraid to come forward fearing that the questions and personal revelations are another violation. and that means that often the attackers go unpunished. victims are left to face them in classrooms and social situations. my next guest is an author and feminist, co-founder of daily clout.com. she says that women shouldn't hide or be stigmatized but should fight back by naming attackers and going to the police. why do you think that? >> because it's a crime. rape is a crime like any other form of assault. what we've got and i agree with the reporter who was on earlier, we've got right now is quite a ridiculous situation in which campuses exploit this feminist and the reasons for it were initially sensitive and now backfiring, desire to protect anonymity of victims so what colleges are doing and sivine this speaking at college campuses and in my reporting is that they use the anonymity that

victims are encouraged to want, as a way to avoid liability, to avoid transparency, to just like uva did, hide any open reporting of sexual assault statistics and protect the he said she said smokiness. >> counter intuitive you are this champion of feminist rights saying hey, get out there in the open and take them on as opposed to protecting the anonymity of women who choose not to do so. >> well, i've gotten like you i've gotten a lot of back lash and attack initially for what i've been saying for years which is that victims of sexual assault should come forward, name themselves, the time, place and their perpetrator. i did that mooips. i was sexually harassed before the crime existed by a professor, famous professor at yale and i kept silent for 20 years then reported out the story when i found out that there had been 20 years of cover-up using these technique, silencing victims and encouraging them to be anonymous. i found yale had a pattern of

hiding much more serious assaults than mine f. you don't enter the news stream by naming yourself, naming your perpetrator and letting a proper investigation take place and proper journalism, it does lead to thinks horrific situations. >> is the reality if i'm a female and i'm carjack ordinary i'm mugged or some other victimization of crime there is not a stigma that attaches to it. unfortunately, if i'm raped, sexually assaulted at least i'm going to think i'll be puerceivd as damaged goods. >> that's a victorian idea. i would rather you know, our daughters got the message and our sons, they are 17% of victims as well, these are huge numbers. i would rather our kids get the message if you are raped or harassed it's no more shame han being mugged in an alleyway. the best way to shine a light, there has been a lot more outing. look at assault of boys at

horace mann, through the church -- >> after sandusky. men are coming forward to their credit saying i was abused. this is the perpetrator. this is who he is. and it lets journalism do the work and police do their work. i really seriously take issue with the way that this reporter believed the victim at the extent of doing adequate journalism which is get the other side of the story and confirm mutually confirm the details and also one more thing which is colleges encourage victims not to go to the police. they have no right to do that. >> thinking they are helping. >> saying they are helping but as i said protecting their liability, the comfort level of parents who shouldn't have a comfort level, protecting their reputations. it's a crime. and they don't have the jurisdiction to keep victims from going to police but they exploit this silence equals support. >> may i share a quick observation how men and women i think read "rolling stone" differently.

guys read it. a rape allegation a man is ruinous they tend to be skeptical. women i think so fearful of the stigmatization of a rape victim tend to be overly sympathetic. there is this natural bias between men and women when we read a story like that which we're talking about. >> sure. which is why proper reporting is important because then you find in fact there's no greater instance of false rape reporting as there is to any other crime. it's 2%. and there are all kinds of reasons that people file false rape or mugging reports, whatever, but i think the more sunlight is shed on these kinds of assaults, i have heard across the country assaults similar to this, maybe not as many men, i heard about assaults as part of initiation, i heard about cover-ups, one in five young women, this is well documented is assaulted sexually on campus. and overwhelmingly there is not

follow-up, there is cover-up. this is really real. i do wish i have to say we were saying this energy reporting on some of these very solid well documented cases. there is a victim up the street at columbia willing to sit here and i hope you have her on carrying around a mattress all through columbia and started 28 mattresses being carried by organizations because she is willing to name herself, her perpetrator, go through the process and holding columbia accountable. >> i'm interested. i worry if this is a hoax, it's a big seat back for real victims. i don't know what to believe. >> that's why we need real reporting and real police investigations. >> agree. thank you for being here. we'll take a short break. when we come back another black man dead, and no indictment for the police officer apparently responsible. people are in the streets, angry, as police officers stand by and watch them shut down highways and block bridges. those officers are angry too. wondering when did we become the villains? how do i now do my job?

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i can't breathe, i can't breathe. those words rang out in the streetsch new york city and across the country this week words on the lips of thousands of angry protesters. the man who spoke those words with his last breath, eric garner who was selling cigarettes illegally on a street corner when police arrested him. brought him down and many believe killed him. this terrible video was disturbing to all of us including police officers. we talked to many sickened by it but at the same time it has eroded the trust that people feel for cops. new york's mayor talked about how some people fear the very cops they look to for security. >> so i've had to worry over the years, was dante safe each night.

there are so many families in this city who feel that each and every night. is my child safe? and not just from some of the painful reality crime and violence in some of our neighborhoods but are they safe from the very people they want to have faith in as their protectors. >> now the thousands of people are taking to the streets each night nypd officers are standing down. most of the time they are simply watching as protesters take over major thoroughfares and walk through traffic. the head of the union says the mayor is betraying his own police force. >> what police officers felt yesterday after that press conference is that they were thrown under the bus. that they were out there doing a difficult job in the middle of the night protecting the rights of those to protest, protecting our sons and daughters, and the mayor was behind microphones like this throwing them under the bus. >> many cops are wondering when did we stop being the good guys

and become the villains? how do we react now when someone we need to arrest fights back? how far do we go? are we now in danger? joining me now to drill down on that is a retired detective. we can agree something went terribly wrong in the garner case. >> without a doubt. >> the question i now have to get beyond the kumbaya and i'm not dismiss sif but i'm hearing what do you do the next time? >> exactly. what's going to happen is police officers are going to think twice maybe three times before they take action because of something like this has happened. listen. this has turned into a racial issue where it's not. and police officers know that when people like al sharpton and his kind are go around pointing fingers at the police officers and second guessing them, saying that they did something wrong when there is no evidence in the grand jury has said this, and

the grand jury knows a lot more about this case than you and i do, and i've been work on this case for four days now. that the police officers acted properly in this case, but there are so many lies out there, that are being spewed out there to the public, making the police officers good and bad. >> i noticed something different, though, i have to say about garner and the tamir rice karks as compared to trayvon martin and the ferguson case. >> right. >> by day i'm a talk radio host. people call me from across the country. i could usually pick up the intonation of your voice, is it white or african-american. and know what you were going to say about these cases. garner's different. tamir rice is different. i'm getting whites and blacks saying something's terribly gone wrong here. i want to go back to my question. god forbid tomorrow you responded to a situation like that, you got a 6'4" guy, 360 pounds, what are you going to

do? >> well, i'll tell you. doing the same thing. i would. okay. but the police officers throughout now would they? i don't know. they are going to thinking maybe i should have a conversation with this guy. listen. the longer you talk to somebody who you place under arrest, all right, the more of a chance there is of you getting injured. there have been police officers killed in the line of duty for minor little things that you think well, you know, why are you bothering me. why are you going after this guy because he is selling cigarettes. because it's against the law t police officers were out there. okay. and like i said before and another officer said before action when the police officer tells you you're under arrest, it's not a suggestion. all right. you are under arrest. you must comply with that officer. the whole thing here is mr. garner would be alive today if he turned around and put his hands behind his back. he knows the drill. he had been arrested 30 times before for the same thing. he know what is he's got to go through. >> he would be alive if the police officer responded when he

said i can't breathe 11 times if he after the third time he said if it he stopped with the choke hold or whatever it was, the guy arguably would be alive. >> i don't know that. you don't know that for sure. the fact that he had pre-existing conditions asthma, a heart condition, we don't know that for a fact. that he would be alive. but the whole thing is that when somebody takes an aggressive stance saying you're not taking me, i'm not going to be taken under arrest, as a police officer you need to respond to that because now it's an afwres sif stance against me. i want to go home too. >> understand and i want you to go home. final question. "the new york times" on friday lead editorial said it's time to rethink the broken windows and enforcement poll sixt don't get so caught up in the minor stuff like this guy selling cigarettings. you agree? >> are they blind. it works. it worked. look what happened to the giuliani administration. >> you think it's causally connected. >> i was a cop in 1982 when i came on the job we weren't

allowed to make drug arrests because they were afraid of us taking money. and look how the crime was in the 80s. it was insane. >> thank you. appreciate your service. we're going to take a break. when we come back as protesters scream for justice, we'll dig down on the hope that a federal prosecution will bring justice in the choke hold case. i think it's wishful thinking. i'll talk to a judge who has a stronger take than i do. discohi! card. so it says here i can redeem my cashback bonus for cash. do i need to have a certain amount? nope, now you can redeem your cashback for any amount, any time. that's great. yeah, you can use it for a statement credit or even get the cash. nice. i could use that extra cash for a last-minute gift... one less thing hanging over your head, right? tell me about it. (to guy.) gary, you got to go. who's gary? a mistake from last year coming back around again... too much egg nog! yes! laaaaa... at discover we treat you like you'd treat you. now redeem your cashback for any amount, any time. get it at discover.com.

the killing of eric garner is one of those rare cases in which most people seem to agree. no indictment on any charge? that doesn't feel like justice. many hope that a federal investigation by attorney general eric holder will change things. but if there is a federal case, it will have to be brought on civil rights grounds. i'm an attorney. i can tell you that's a big legal mountain to climb. one man who knows a great deal about it more than i do, is a former judge, attorney, and cop, all in one, alex ferrer. he joins me from chicago. do you expect there will be federal charges brought on the garner case? >> i would say it's likely. i would say the garner case is different from the case in ferguson. i was surprised like you were that there wasn't an indictment because of what i saw on the video. not to say i thought the takedown was improper.

i thought the take down was the appropriate action on somebody resisting arest. it was the actions on the ground, the arm across the throat, his crying for help, those things i thought would led to an indictment. not necessarily a conviction but the standard is much lower. >> when you say you think that the take-down was proper, is that alex ferrer the former cop speaking, is that the former judge speaking or a combination of both? do you have a different perspective when you wear your judicial hat versus your former cop hat? >> yes. every step i have taken in my career from police officer to lawyer to judge gives me a broader perspective on how the system works and the actions of police officers. so it's all of it. but realistically what people need to understand when a police officer tells you you're under arrest, your resisting is not going to get them to say okay, i guess i'll hop in my car and leave. all it's going to do is increase the amount of force he has to use to place you under arrest. if he can't do it himself there

will be 15 other guys coming to make sure you are placed under arrest. i tell my kids, anybody, listen, even if you think the officer is wrong if he places you under arrest submit. you can always sue them, go to the media, to the police department. but you're not going to win fighting a police officer. if you don't put your hands out to get hand cuffed they are trained to take to you the ground where you are less likely to be violent because you can't swing at them. that's kind of why i believe in tasers because any time you take somebody to the ground especially somebody who is 350 pounds and 6'3", there is a massive amount of force used and the likelihood for injury is much higher. >> you told me you believe eric holder and may be a successor by the time it comes will bring federal charges in the garner case. you haven't told me will those be successful. that's a separate question. >> that's a very separate question. same as i said with the indictment. it's one thing to indict. it's a low standard probable cause. proof beyond every reasonable doubt is much higher 18 federal

civil rights case the standard that's applied is a reasonable officer standard. it's the actions of a police officer, because the courts recognize that police officers have to make decisions that we don't have to make, they don't necessarily know if the person who they are arresting is planning on being violent, they don't know if the person has a violent past, there's all kinds of circumstances. so they apply a reasonable officer's standard. and the public generally likes to give the benefit of the doubt to the police officer even when the outcome is tragic. i don't believe for a second that this officer intended to kill or even seriously injure mr. garner. what i think is that he was using the force he thought necessary and he may have used excessive force, and it will certainly lead to a civil case. no question about that. >> alex, twill success of any federal claims that are initiated by the justice department be predicated on some degree of racial an i must, and if so how might propers cross that things to do item off the

list? >> no. there are separate federal statutes that apply to civil rights violations with a racial animus and those not. there are two separate statutes, 242 and 249. they would not have any indication that i saw or that i heard of to indicate either in the ferguson case or the garner case that this was motivated by race. >> let me offer a theory before we have to wrap up. what if the argument is that this was all a part, outgrowth of the broken windows police enforcement. the minor stuff we need to hit hard on or it grows into major stuff. and that the broken windows philosophy has a disproportionate impact on minorities consequently there is a racial element to going after someone like mr. garner in the way they did. >> that doesn't apply to an individual officer's state of mind. that may be an argument why a particular program is racially biased or violates equal

protection clause. we're talking about the specific mind-set of this officer, was he motivated by race. and i can tell you i would bet my life that if that was a 6'3", 350 pound white guy who they were going to arrest and pulling his hands away he would have been wrapped the same way and dragged to the ground and might have suffered the same fate. >> thank you so much for being here. up next, america service men and women sacrificed and spilled their blood for our country. true heroes. what would you do if you found out that one of them was a fraud, a faker? next we're going to show you what one former soldier did do and i promise you, you won't be able to stop watching. rwater? try zyrtec-d® to powerfully clear your blocked nose and relieve your other allergy symptoms... so you can breathe easier all day. zyrtec-d®. find it at the pharmacy counter. zyrtec-d®. ♪ hi. i'm new ensure active clear protein drink. >>clear huh? i'm not juice or fancy water.

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welcome back. so, a man dressed as an elight army ranger walks into a suburban shopping mall on black friday. sounds like the beginning of a joke. there is nothing funny about this. it happened outside of philadelphia, a real military veteran spied a man he didn't think looked authentic. decided to confront him. he quickly deduced that this ranger was no ranger and no hero at all and he said so and he filmed the whole thing so. far this has 3 million views. watch. >> he's calling a staff sergeant staff sergeant when she wearing the rank of a staff sergeant. that makes no sense. here it stolen valor at its finest.

wearing united states army uniform, you know that's illegal, right. >> let me tell you. if i was phony i wouldn't be wearing this. >> you wouldn't? >> you are phony. i called you out about ten different things. all of them are bull [ bleep ]. this is illegal. you know what, i've worn that and i had friends get killed in that uniform. you are full of [ bleep ]. stolen valor. right here. stolen valor. >> the man the name on the uniform is shawn. he claim head received medals for his service. it's called stolen valor. to help me get to the bottom of this disturbing case i'm joined by the man responsible for what's known as the stolen valor act. doug sterner, a real historian and combat vaet ran, co-author of restoring valor, and he joins us from colorado springs. doug, let's remind folks what went on. you were offended by so many who were impersonating individuals who had won awards for military

service that you initiated a law along with your wife pam, president george w. bush signed it into law, unfortunately it went to the supreme court of the united states and they said hey, there is a first amendment right to lie. so what about this guy, because i know the law was then retooled. how does it treat him? >> well, first of all, thank you for having me on today, michael. good to be on tv with you for a change. but i want you to understand there's two types of stolen valor. one type of stolen valor when you put on a uniform or wear a medal. that has always been against the law. the stolen valor act was signed by president bush and redone and passed in 2013, is section 704 of title 18 u.s. code. that addressed verbal claims primarily to address people like the district judge in illinois who had too medals of honor hanging on his courtroom wall, couldn't be prosecuted because he wasn't wearing them.

the issue with mr. yeatman is he was wearing three awards which is very rare, which is covered under section 04, if, and this is the caveat with that redone bill which is really not very good, he did it with intent to obtain money, property or other tangible benefits. >> if at the mall there was a sale for veterans, and he went and put on that uniform to take advantage of the sale, then arguably he violated the law. >> he violated the stolen valor act, section 704, but even before that, let me take you back two more sections to section 702 of the u.s. code, which says whoever without authority wears the uniform of any of the armed forces of the united states shall be fined under this title or imprisoned not more than six months or

both. so he may be in violation of section 704, the stolen valor act. >> i want to ask you this. because we're horrified by this video and the prospect that he might not deserve to wear that uniform. you have told me, on my radio show, this is nothing. that you've seen far worse than this in the last six months alone. explain. >> in the last 30 days. this is a very, very low level case in my order of priorities. we had three phony prisoners of war since veterans day. and that's the thing that people need to understand. and you know this better than most. you have been there with us all the way. i appreciate you. one, this thing is prevalent. this isn't just an aberration. this is going on every day in cities across america, and number two, it's not harmless. okay. so he got a veteran's discount. that sounds harmless. pam, my wife who wrote the bill describes it as an iceberg

criminal action. what you see probably is the smallest part and beneath it there is any level of criminal activity. >> understood. doug, thank you for your real service. we appreciate it. >> thank you, michael. good to be on with you. >> when i come back, this question. what do elected officials think about the choke hold case and is there anything they can do about it. senator bob casey is one of the good guys. i'll ask him when i return.

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trayvon martin, mike brown, tamir rice, eric garner, some of the controversial police killings of young african-american men that are garnering national headlines, now against this backdrop multiple federal investigations initiated by the justice department, just as eric holder is leaving office. if confirmed, the garner case will land on the desk of a new attorney general named loretta lynch currently interestingly the u.s. attorney for the eastern district of new york. there's lots of talk in the nation's capital what can be done. i want to talk to one of the senate members how to deal with this. i have found him, in pennsylvania senior senator robert casey. senator, when you watch that video like the rest of america, what are you thinking? >> michael, the video i think shocks the conscience. that's an old expression for something even if you are not a prosecutor, even a lawyer, what

is depicted on that video should shock the conscience of anyone and lead to a lot of questions even in the absence of a determination of no charges being brought pursuant toop the grand jury process. so it was horrific to hear someone say over and over he couldn't breathe i think should cause any one to be concerned about what happened in that case, both properly and substantively. >> is there a federal response in order? for example, you heard the criticism senator, that says that prosecutors local prosecutors shouldn't be investigating local police. might there be some federal role for that type of a scenario where in this case instead of a staten island district attorney prosecutor taking a look at the conduct of the cop it would be on a federal level? >> i don't think there is any question when you see -- obviously there's other evidence to consider and michael, you've outlined on a number of occasions since i have known you over the years that we've got to

look at all of the evidence. but just in the context of what was on that video which is -- you don't have to have a trained eye to be outraged by what you saw. in the context of that video and that decision, i would hope that there's a federal role to provide a measure of review that i think most americans would expect in the interests of fairness and justice. beyond that, beyond this case, it remains to be seen what specific federal rule there is. i'm not a believer that every problem has a federal response. but i do think it's important that the president as he has already initiated, is having a conversation and wants to have a very in depth conversation about some of these issues. even if there is not legislation or policy that flows from that i think it's a very important conversation, very difficult, but i think he's trying to have an honest conversation with the american people more broadly but

especially communities where there's basic tension or conflict. >> let me change gears and ask you about a different subject. you are laboring on something that might not get a lot of headlines but will impact many americans' lives. tell me about the able act. >> michael, this is a very simple piece of legislation in one tense. what we're trying to do to help families that have a loved one with a disability is to do what we already did in the context of higher education. we encourage people to save for education and incentivize it through the tax code. we do the same for retirement. we haven't done that for disabilities so this will allow families that have a loved one with a disability in some cases more than one disability, to be able to put money away in a tax advantaged manner and they can withdraw from that account when that individual who might at the age of 7 when people are putting money into her account, when she is 25 or 30, and in the work

force, she'll be able to use that account to live her life and to hopefully to live a full and successful life. so we're just trying to provide the kind of opportunity for folks with disabilities that we have for folks saving for college. >> senator casey, thank you. >> when we come back, allow me to make a closing argument about the death of mike brown in ferguson and the differences that i see between that case and the death of eric garner in new york city. for cash. do i need e a certain amount? nope, now you can redeem your cashback for any amount, any time. that's great. yeah, you can use it for a statement credit or even get the cash. nice. i could use that extra cash for a last-minute gift... one less thing hanging over your head, right? tell me about it. (to guy.) gary, you got to go. who's gary? a mistake from last year coming back around again... too much egg nog! yes! laaaaa... at discover we treat you like you'd treat you. now redeem your cashback for any amount, any time. get it at discover.com.

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like many others i was shocked by the grand jury decision not to indict nypd officer in connection of the death of the eric garner. on the surface it looked to me like a case of involuntary manslaughter still i'm going to read every bit of evidence. i hope it will all be released. same instance i offered aferguson. and the investigation into mike brown's death was imperfect but it came to a just result. you might remember three mont monthsinmonths ago on august 23rd. i drew a line on my legal tablet separating what we knew what

what we didn't and said i said this. >> let's all pay attention, scrutinize the information as it comes to light and share our opinions as to the evidence but all the while withholding final judgment. >> i didn't want to pass judgment until i read every scrap of evidence released. i'm a lawyer. i studied had evidence with a lawyer's eye. i strive to be as fair as humanly possible. here are the reasons why i think the ferguson decision was correct. first prosecutor robert mccullough was in a no win position. knowing he could not secure a conviction, he was ethically bound not to bring charges. i imagine he didn't think there was probable cause to arrest wilson but recognized that the community would not accept his unilateral decision where questions had been raised about his ties to law enforcement. second officer wilson testified for 90 minutes without once asserting his fifth amendment

right. that was highly unusual. experienced criminal lawyers will tell you this is unheard of and dramatically confirms that wilson believes he had nothing to hide. third eye witness testimony both supported and contradicted wilson's account. as detailed in an interactive compilation by the washington post. some like wilson saw brown charge. while others, they saw surrender. and fourth even if the eye witness accounts support indictment, the physical evidence said otherwise. the professor of law at the university of utah published a precise analysis in the post, which made sense to me. the conclusion, that the powder burns, the dna, the bullet trajecto trajectory, the blood evidence and the shell casings all support wilson's account. on first of those points where

wilson testified brown wrestled him for his gun inside his police vehicle during which wilson fired two shoots. the medical examiner said the soot was indicative of firing from just six to nine inches from brown's hand. think about it. had there ban full criminal trial i see no way that such evidence would ultimately have convicted beyond a reasonable doubt, where the law allows him to use deadly force if he reasonably believed that he was in danger. and finally we come to the most significant issue in this case and cases like it. race. did wilson stop brown because he was black? now, compare wilson actions to those of george zimmerman. many, including mee think that

he stalked trayvon knight was walking home simply because he was block. wilson was in the neighborhood responding to a stress call from an infant and when he stopped brown he had just receive radio description of the man that matched brown to my eye. there was no racial profiling, period. and so the death of 18-year-old, unarmed mike brown is a terrible tragedy. the process by which it was investigated wasn't perfect. but the result, warts and all was just. there is no doubt that police can give perfectly innocent young black men a tough time for no good reason. but this isn't the case to make that point. eric garner might be. i want to see all the evidence. we'll be right back with a final thought. like my potassium and phytosterols which may help lower cholesterol.

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thank you so much nor joining me. don't forget you can follow me on twitter, if you can spell smerconi smerconish. see you next week. today a daring rescue attempt to save american hostage luke somers goes terribly wrong. >> both mr. somers and a second non u.s. citizen hostage were in the words of hagel, murdered by the terrorist during the course of the operation. >> plus. >> who do you serve? who do you protect? >> protests heat up nationwide with more planned for today. rolling stone apologizes for discrepancies in an article about gang rape. and parents learn the dark truth about a synthetic drug killing