hello and welcome to the program. i'm michael smerconish. we're focusing on a black man dead at the hands of police. tonight i've got hard questions you may not have heard. growing resentment among police officers. have they become the villance instead of the heroes? as the country takes to the streets to say no more, cops say their hands are tied as the crowds go larger, so does their anger. while the cops ask the 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 confront ed him and 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. 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, the university immediately suspended all activity and held crisis meeting to deal with the scandal and the fear that spread through the campus. the university has had 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 received may have been unjust. i interviewed the journalist who wrote the story on my radio program. her name is sabrina erdley. this is what she said last week. i'm gleaning from what you wrote, you buy it, you believe it. >> yes, at the end of the day, you know, it's -- it is, you know -- i wasn't in that room, you know, so i can't really know what happened. but everything about jackie is entirely credible. i put her story through the ringer, i talked to all of her friends, all the people she confided in on the way. her story is very consistent. she has clearly been through a tremendous trauma. and i don't doubt that something happened to her that night. >> it 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 read the story, and so did journalist eric wempel of

"the washington post." eric, from a journalistic standpoint what bothered you in terms of what level of fact checking took place? >> thanks for having me on. the thing that bothered me about the story is something you find in the very best journalism, which is a reproducibility standard. i found nothing -- almost nothing in that story that i could hang on to 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 story i could hang on to 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 "rolling stone" allegations look a little shaky and they had to do an enormous amount of reporting to do that. >> in your own blog, your own coverage of this issue, there

was a particular paragraph 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 fact, send an e-mail, send a infecti fedex, use u.p.s. none of those were done. >> it turns out they didn't do the slightest bit of effort to get in touch with the accused, in deference 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 agreement with the accuser 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 she truly went lookinging for a story of sexual assault on an american campus. >> that's correct. she shopped around several different campuses and says she landed on uva because it's a

gente genteel, southern place, and a good place to work on reporting about sexual assault on the campus. and clearly, you know, the thing about this story is there are segments of that story that really do talk about serious problems. there is another victim cited in the story whose name is stacy. she suffered a horrific, horrific assault. and the university, according to the story, did not handle it well. it's -- you know, that story isn't getting talked about, much simply because the lead of the story was this -- this gang rape that involved nine men. and so -- and that has eclipsed everything. and it's a real, real tragedy that this investigation by "rolling stone" has been undone by their own incompetence. >> the reason perhaps so many were 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, she cites statistics saying that the rape is more common among fraternity pledges. she cites other statistics about, you know, uva. and, indeed, the problem across the country is outrageous. and, you know, 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're not. >> but, 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 that i did with the journalist, and people found me somehow disrespectful of women for even asking. i was trying to bring the perspective of someone who lived in a fraternity, not protecting that whole culture, but just saying, i think it's strange

credulity to believe that seven or nine guys would have brutally rate of speed this woman behind closed doors while a party was going on downstairs. thank you. i appreciate your reporting on this. >> thank you for having me on. >> >> whether the "rolling stone" article is accurate, the 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 yet another violation. and that means that often the attackers go unpunished while victims are left to face them in classrooms and social situations. my next guest is an author and ground-breaking feminist, naomi wolf, co founder of dailyclout.com. she says women shouldn't hide or be stigmatizeded 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, just like any other form of assault. and what we've got and i agree with the reporter who was on earlier, we have a ridiculous

situation in which campuses exploit this feminist, and the reasons were initially sensitive and now back firing, desire to protect the anonymity of victims at all costs. and so what colleges are doing systematically, and i've seen across the country, speaking at college campuses and in my own reporting, 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 to protect the end he said/she said smokiness. >> you're this champion of feminist rights and you're saying get out there in the open and take them on, as opposed to protecting the anonymity of women who choose not to do so. >> i've gotten like you, a lot of backlash and attack initially from what i've been saying for years is that victims of sexual assault should come forward, name themselves, name the time, place and their perpetrator. i did that myself. i was sexually harassed before

the crime existed by a professor, famous professor at yale. and i kept silent for to 20 years. and then reported the story when i found out there had been 20 years of cover-up, using these techniques of silencing victims and encouraging them to be anonymous. and i found that yale had a pattern of hiding much more serious assaults than mine. but if you don't enter the news stream by naming your perpetrator and letting a proper investigation take place, and proper journalism, it does lead to these kinds of horrific situations. >> isn't the reality, if i'm a female and i'm carjacked or i'm mugged or some other victimization of crime, there's not a sigma that attaches to it. unfortunately, if i'm raped, sexually assaulted, i think i'll be perceived as damaged goods in a different way. >> that's true. but that's a very victorian idea about women and sexual assault. i would rather our daughters got the message and our sons, because they're 17% of victims of sexual assault, as well.

these are huge numbers. i would rather our kids got the message that if you're raped or sexually harassed, it's no more your shame than being mugged in an alleyway. and the best way to shine a light -- i mean, there has been a lot more outing -- let's look at assault of boys at horseman, you know, through the -- >> church. sandusky. >> yeah, 30 years later, men coming forward, saying i was abused, this was the perpetrator, and it let's journalism do its work and the police do their work. i really seriously take issue with the way that this reporter believed the victim at the expense of doing adequate journalism, which is to get the other side of the story and to confirm, you know, mutually confirm the details. and also i just want to say one more thing, which is colleges encourage victims not to go to the police. they have no right to do that. >> thinking they're helping them. >> well, saying they're helping them. but really, as i said, protecting their own liability, protecting the comfort level of parents who shouldn't have a comfort level.

protecting their own reputations. it is a crime. and they don't have the jurisdiction to keep victims from going to police. but they exploit this silence equals support over and over. >> may i share a quick observation of how men and women, i think, read "rolling stone" differently? >> sure. >> guys read it, and because they realize a rape allegation against a man is so ruiness, they tend to be skeptical. maybe too broad of a generalization here. women, i think, so fearful of the stigmatization tend to be overly sympathetic. and so there is this natural bias between men and women when we read a story like that which we're now talking about. >> sure. which is why proper reporting in sunlight is so important. because then you find, in fact, there is no greater instance of false rape reporting as there is of false reporting of any other crime. it's 2%. and there are all kinds of reasons people file false rape reports or false mugging reports or arson reports, fraud reports, whatever. but i think the more sunlight is shed on these kinds of assaults. and i'll tell you, i have heard across the country assaults

similar to this, maybe not as many men. i've heard about assaults as part of initiation rituals, not as systemic. i've heard of cover-ups. one in five young women, this is well documented, is assaulted sexually on campus, and overwhe overwhelmly, there is not follow-up. cover-up. this is real. i do wish, i have to say, we were seeing this kind of energy reporting on some of these very solid, well-documented cases. there is a victim up the street at columbia who is willing to sit here with you, who is carrying around a mattress all through columbia and has started 28 mattresses being carried around columbia by organizations because she is willing to name herself, name her perpetrator, go through the whole process, and she is holding columbia accountable. >> i'm interested. >> so i do want to -- >> i worry this is a hoax. it's a big setback for real victims. i don't know what to believe. >> i agree. but that's why we need real reporting and real police investigation. >> i agree with that. naomi wolf, thank you for being here. we're going to take a short break.

and when we come back, another black man dead, and no indictment for the police officer apparently responsible. people are in the streets, they're 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 know do my job?

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i can't breathe, i can't breathe. those words rang out in the streets of new york city and across the country this work, 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 staten island street corner when police arrested him, brought him down and many believe killed him. this terrible video is disturbing to all of us, including police officers. we've talked to many who are sickened by it, but at the same time, it has eroded the trust that people feel for cops. new york's mayor, bill de blasio, talked how some people fear the very cops they look to for security.

>> so i've had to worry over the years, is donte safe each night. there are so many who feel that he have night, is my child safe. and not just from some of the painful realities, crime and violence in some of our neighborhoods, but they say from the very people they want to have faith in as their protectors. >> now, the thousands of people are taking to streets each night. nypd officers are standing down. most of the time, simply watching as protesters take over major thorough fares and walk through traffic. the head of their 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 comes are wondering, when did we stop being the good guys and become the villains and how do we react now when someone we need to arrest fights back. how far do we go? and are we now in danger? joining me to drill down on that question is harry houck, a retired nypd detective. we can all agree, something went terribly wrong in the garner case. >> without a doubt, yes. >> the question i now have, though, to get beyond the kum ba yah and i'm not dismissive of the goodwill out there, but i'm not hearing specifics who would tell someone who has done what you've done for a living, what do you do the next time? >> exactly. what's going to happen here is that the police officers are going to think twice, maybe even three times, before they take action because of something like this happened. now, listen. this has turned into a racial issue where it is not a racial issue. and police officers know that when people like al sharpton and

his kind go around pointing fingers at the police officers, and second-guessing them, all right, saying they did something wrong when there is no evidence, and 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 working on this case for four days now, all right? that the police officers acted properly in this case. but there are so many lies out there, all right, that are being spewed out to the public and making the police officers look good and bad. >> i notice something, different, though, about garner and the tamir rice case in cleveland, the 10-year-old boy shot, 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 and offer opinions. i could usually pick up thein to nation of your face, is it a white person or african-american and know what you were going to say about these cases. garner is different. damere rice is different. now i'm getting whites and blacks who are saying something has gone wrong here and needs to

get reined in. if god forbid tomorrow you responded to a situation like that, you've got a 6'4" guy, 360 pounds, what are you going to do? >> well, i'll tell you, i would do the same thing. i would. but the police officers out there now, would they? i don't know. they're going to think, 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 things that you think, well, you know, why are you bothering me, it's a minor thing, why are you going after this guy because he's selling cigarettes? because it's against the law, the police officers were out there, okay? and like i said before, and another officer said before, when a 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 knew the drill. he had been arrested 30 times before for the same thing. he knows what he's got to go through. >> but arguably, he would be alive today if the police officer had responded when he said, "i can't breathe" 11 times, if -- after the third time he said it, if he had 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. all right? the fact that he had preexisting conditions, all right, asthma, a heart condition. we don't know that for a fact, that he would be alive. the whole thing, when somebody takes an aggressive stance saying, you're not taking me, i'm not going to be taken under arrest anymore. as a police officer, you need to respond to that. because now it's an aggressive stance against me. >> quick -- >> i want to go home tonight. >> understand. and i want you to go home. if i can final question. the "new york times" on friday, lead editorial said it's time to rethink the broken windows enforcement policy. don't get so caught up in the minor stuff, like this guy selling cigarettes. you agree or disagree?

>> are they blind? it works. it worked. look what happened to the guiliani administration. >> you think it's causally connected. >> i was a cop in 1982 when i first 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. insane. >> harry houck, thank you. appreciate your service. we're going to take a quick break. and 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 i'll talk to a judge who has a stronger take than i do. be right back. ♪ hi. i'm new ensure active clear protein drink. >>clear huh? i'm not juice or fancy water. i've got 8 grams of protein.

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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 are hoping that a federal investigation by attorney general eric holder will change things. but if there's 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. now 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, joins me from chicago. do you expect federal charges brought on the garner case? >> i would say it's likely.

i think it's very different from the case in ferguson. i was surprised, like you were, there wasn't an indictment filed because of what i saw in the video. not to say that i thought the takedown was improper. i thought the takedown was actually the appropriate police action on somebody who was resisting arrest. it was after the takedown, the actions on the ground, the arm across the throat, his crying for help. those things i thought would lead to an indictment. not necessarily a conviction down the road, but the standardized is much lower. >> when you say you think the takedown was proper, is that alex ferrer, the former cop or judge, or both? do you have a different perspective when wearing your judicial hat versus your former cop hat? >> yes. every step i've taken in my career from police officer to lawyer to judge gives me a broader perspective an 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, oh, okay, i guess i'll hop in my car and leave. all it's going to get them to do is increase the amount of force he has to use to place you under arrest. and if he can't do it himself, there will be 15 other guys in uniform coming to make sure you're placed under arrest. i always tell might kids, anybody, listen, even if you think the officer is wrong, submit, you can always sue him, you can always go to the media, you can always go 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 handcuffed, they're trained and properly so, to take you to the ground, where you're less likely to be violent because you can't swing at him. 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've told me you believe eric holder, and it may be a successor to holder by the time it comes this far, will bring federal charges in the garner case. but you haven't yet told me, will those charges 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 very low standard, probable cause. proof beyond every reasonable doubt is a much higher standard, and a federal civil rights case, the standard stride is a reasonable officer standard. it's the actions of a police officer. because the courts recognized that police officers have to make decisions that we don't have to make. they don't necessarily know if the person who they're arresting is planning on being violent. they don't know if the person has a violent past. there's always kinds of circumstances. so they apply a reasonable officer 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 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, with the success of any federal claims that are

initiated by the justice department be predicated on some degree of racial animus, and if so, how might prosecutors cross that things to do item off their list? >> no, i -- there are separate federal statutes that apply to civil rights violations with a racial animus, and those that are not with a racial animus. there are two separate statutes. i think they're code sections 242 and 249. they would not have any indication that i saw or that i've heard of, to indicate either in the ferguson case or in the garner case, this was motivated by race. >> let offer you quickly a theory, before we have to wrap-up. what is the argument is this was all a part an outgrowth of the broken windows police enforcement. the minor stuff we need to hit hard on it, otherwise it grows in major stuff, and 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 -- that doesn't apply to an individual officer's state of mind. that may be an argument as to why a particular program is, you know, racially biased or violates an equal protection clause. but what we're talking about is the specific mind-set of this officer. was he motivated primarily by race. and i can tell you, i would bet my life if that was a 6'3", 350-pound white guy who they were going to arrest and was pulling his hands away, he would have been wrapped the same way and dragged to the ground. and unfortunately, might have suffered the same fate. >> judge alex ferrer, thank you for being here. up next, america's service men and women. they have 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. ♪ ♪

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but the comfort it provides is it's justimmeasurable.ece the america red cross brings hope and help to people in need every 8 minutes, every day. so this season give something that means something. . welcome back. a man dressed as an elite army ranger walks into a suburban shopping mall on black friday. sounds like the beginning of a joke, right? nothing funny about this. it happened outside philadelphia. a real military veteran spied a man who he didn't think looked authentic and decided to confront him. he quickly deduced this ranger was no ranger at all and said so and filmed the whole thing. so far, this video has 3 million views. watch.

>> he's wearing the rank of a staff sergeant. that makes sense. here it is, guys. stolen valor at its finest. wearing a united states army uniform. you know that's illegal, right? what you're doing right now? >> let me tell you something. if i was phony, he wouldn't be wearing this uniform. >> i just called you out on ten different things and all are [ bleep ]. what you're doing right now is illegal. because you know what, i've worn that [ bleep ] uniform and i've had friends get killed in afghanistan wearing that uniform. stolen valor right here. stolen valor! >> the man, is sean yetman and claimed he received medals for his military service. to help me get to the bottom of this, i'm joined by the man responsible for what's known as the stolen valor act. doug sterner, real military historian and vietnam combat veteran, also coauthor of

"restoring valor" and joins us from colorado springs. doug, let's remind folks what went on here. you were offended by so many who were impersonating individuals who had won awards for their 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. it's good to be on tv with you for a change. 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 that 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 two medals of honor hanging on his courtroom wall, couldn't be prosecuted, because he wasn't wearing them. the issue with mr. yetman is, he was wearing a combat infantryman's badge, cib, three awards, which is very, very rare, covered under section 04. if -- and this is a caveat with that redone bill, really not very good. he did it with intent to obtain money, property -- >> so, for example, at the mall that day, there was a sale for veterans -- if, a hypothetical, and he went and put on that uniform to take advantage of the sale, 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 who have, 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've had three phony prisoners of war since veterans day. >> wow. >> and that's the thing that people need to understand. and you know this better than most. you've been there with us all the way, and i appreciate you. number 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 veterans discount. that sounds harmless. pam, my wife, who wrote the bill, described stolen valor as an iceberg criminal action. what you see probably is a smallest part. and beneath it, there is any level of criminal activity. >> understood. doug sterner, thank you so much for your real service. we appreciate it. >> well, thank you, michael. it's good to be on with you. >> got to take a quick break. 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, and i will ask him when we return.

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trayvon martin, mike brown, tamir rice, eric garner, just some of the controversial police killings of young african-american men that are garnering national headlines, and now against this back drop, multiple federal investigations initiated by the justice department, eric holder is leaving office. if confirm, the garner case will land on the desk of a new attorney general, loretta lynch. there is lots of talk in the nation's capital what could be done. i want to talk to one of the smart and thoughtful senate members about how to deal with this crisis. i have found him in pennsylvania senior senator robert casey. when you watch that garner video like rest of the america, what

are you thinking? >> michael, the video i think shocks the conscience. that's an old expression for something that even if you're not a prosecutor, even a lawyer, the -- what's depicted on the video should shock the conscience of anyone and lead to questions, even in the absence of a determination of no charges being brought pursuant to the grand jury process. so it was horrific to hear someone say over and over again that he couldn't breathe. i think should cause anyone to be very concerned about what happened in that case, both procedurally and substantively. >> is there a federal response in order? for example, you heard the criticism, senator, that says prosecutors, local prosecutors, shouldn't be investigating local police. might there be some federal role for that type of a scenario, where in this particular case, instead of a staten island district attorney, prosecutor taking a look at the conduct of the cop, it would have been someone on a federal level.

>> i don't think there is any question, when you see -- and 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, 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 is a federal role to provide a measure of review that i think most americans would expect in the interest of fairness and justice. beyond that, beyond this case, it remains to be seen what specific federal role 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, as having a conversation and wants to have a very in depth conversation about some of these issues. because 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 is basic tension or conflict. >> let me change gears, and ask you about a different subject. you're 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 sense. basically, 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 higher education and incentivize through the tax code. we do the same for retirement. we haven't done that for disability. so this will allow families that have a loved one with a disability and in some cases more than one disability, to be able to put money away in the tax advantage 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 committee work force, she'll be able to use that account to live her life and to hopefully 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. >> thanks, michael. when we come back, police 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. i'll be right back. it's more than the driver. it's more than the car. for lotus f1 team, the competitive edge is the cloud. powered by microsoft dynamics, azure, and office 365, the team can gain real time insights and instantly share information around the globe.

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like many others, i was shocked by the grand jury decision not to indict daniel pantaleo in connection with the death of eric garner. on the surface, it looked to me like a case of involuntary manslaughter. still, i want to read every bit of evidence presented to the grand jury. i hope that information will all be released. it's the same approach that i offered in ferguson. and now i want to tell you what i believe about that case. the investigation into mike brown's death was imperfect, but it cape came to a just result. you might remember a commentary i delivered here three months ago on august 23. i drew a line down the center of

my yellow legal tablet, separating what we knew from what we didn't know. and then i said this. let's all pay attention. by all means, 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 had read every scrap of evidence released and despite the fact that many pundits quickly dispensed their judgments, it took real-time to do it. i'm a lawyer. i study the evidence with a lawyer's eye. i strive to be as fair as humanly possible. so 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, mccullough was ethically bound not to bring charges. i imagine he didn't think there was probable cause to arrest darren 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 testifying for 90 minutes without once a certificating his fifth amendment right against self incrimination, that was highly unusual. experienced criminal lawyers will tell you, this is unheard of, and dramatically confirms that wilson believed he had nothing to hide. his account was also consistent with his prior statements. third, eyewitness testimony both supported and contradicteded wilson's account. as detailed in an interactive compilation by the "washington post," some like wilson saw brown charge while others saw surrender. but fourth, even if the eyewitness accounts are read to support an indictment, the physical evidence suggested otherwise. paul cassell, a criminal law professor at the sj quinny college of law at the university of utah, published a precise analysis in the "post" which made sense to me. his conclusion, that the powder burns, the dna, the bullet

trajecto trajectory, the blood evidence and the shell casings all support wilson's account. on just the first of those points, where wilson testified that brown wrestled him for his gun inside his police vehicle during which wilson fired two shots, the medical examiner testified that the soot was addictive of a gun firing just six to nine inches from brown's hand. ask yourself, why would brown's hand have been in such close proximity to the weapon absent a nefarious intention? look, had there been a full criminal trial, i see no way that such evidence would ultimately have convicted wilson 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's actions to those of george zimmerman. many, including me, think that

zimmerman stalked trayvon martin while walking home at night, simply because he was black. is there anything to suggest that wilson had similar motivation? wilson had no complaint against him during his time in the force. wilson was in the neighborhood responding to a distress call from an infant. and when he stopped brown, wilson had just received a police radio description of a man in a black shirt who had robbed signify relios from a nearby convenience store a, description that 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 results, warts and all, was just. there's 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 of the evidence.

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thank you so much for joining me. don't forget, you can follow me on twitter, if you can spell smerconish. see you next week. the following is a cnn special report. i don't think he's breathing at all. >> we need somebody now. >> he started to foam at the mouth. convulsing uncontrollably. >> this is the only time we have reached out to a school system, university, and said, hey, there is this danger on the streets. >> deadly new drugs on america's streets. >> it's nothing like i've had before. the trees look like cauliflower dancing around. a