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SMERCONISH

Malaysian Government To Release Preliminary Report On MH-370 Investigation; Is Forcing Donald Sterling To Sell Team Going Too Far?; Did Sterling's Girlfriend Break The Law By Recording Conversation With Him?; Headlines Redefined

Aired April 30, 2014 - 21:00   ET

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


MICHAEL SMERCONISH, CNN HOST: 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 p.m. here in New York City, but it's already 9:00 Thursday morning in Malaysia. And this is the day that the families of the 239 people aboard Flight 370 are finally going to get some answers on what may have happened to that airplane. They've 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 it may have found the wreckage of an airplane, although it's not outright claiming to have located Flight 370.

We're joined by CNN Safety Analyst David Soucie. He's the author of "Why Planes Crash." David, I get that there is nothing normal about MH Flight 370, but is it customary that a report such as this would then be issue?

DAVID SOUCIE, CNN SAFETY ANALYST: No. You're talking about the preliminary report which are required by International Civil Aviation Organization and typically it is released. What's unique about these particular situations has been reviewed by the GACC, by another organization, international organization, and by the Malaysians before it gets released. So, what I'm hopeful is that it has some great information in it about how it was transferred from one control center to the other control center. What I'm worried about is that they've redacted it to such a level that is just going to create frustration, more frustration for these families.

SMERCONISH: What are the standard elements if these were the typical kind of a case? What would you expect to see?

SOUCIE: It would be just facts. It's 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's been damaged, how it's been damaged, where it entered (ph) the water for example, or how particular piece of the aircraft have been distorted by something. It's very, very technical in nature in most cases. In this case, they don't have an air crafts. They don't know what the aircraft damage is. So there's a lot of boxes and check boxes for example who is on the aircraft, the -- who is the crew on the aircraft, the flight -- or excuse me, the pilot's flight numbers, the pilot's license numbers, the aircraft flight number. But the pilot's license numbers, the air traffic control or people who did the handoffs, those things will probably be redacted because just for their own security and their own privacy. But it's usually a very straightforward fairly mundane report.

SMERCONISH: Well, here's what I'm not hearing from David Soucie. I'm not hearing that we can look forward to the results of a law enforcement investigation. I'm not hearing from you that we're going to find out what we now or what the Malaysians know about the pilot, the co-pilot who may or may not have been in the jump seat or what's known about the crew or the passengers themselves.

SOUCIE: That's right. The criminal investigation is separate and is supposed to be protected. It's never in this report. So ICAO has no authority to release criminal, police, FBI, any kind of records in that way. So any kind of criminal investigation will remained 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. There maybe some clues we could draw from that though because if they redacted very specific information that's normally in there, you could conclude that there is some criminal investigations still going on, on whatever piece was redacted.

SMERCONISH: David, were you anticipating the report from the Malaysians? In fact, this is the report that the Malaysian Prime Minister told our own Richard Quest was soon to be released. This is not data coming from the Australians. Am I right in saying that?

SOUCIE: Yes. That's correct. It's the report that's required of the country of register. This aircraft crashed in international maritime waters. Therefore, the country of register or the operating company, either one, is that country that has to do these reports. And they did do those reports. And I remember, these death (ph) reports were very late which you would expect in the investigation of this size that it was very late. And I was very impressed with how Richard Quest state on the Prime Minister and tell he was admitting that yes, we will release these reports. I don't think this would have happened at that report had he not being cornered in that way. It was very good job.

SMERCONISH: To what extend do you think Boeing would be involved in the preparation of the report that's about to be released?

SOUCIE: Boeing will be consulted on it. Boeing doesn't write the report. They may write a section on the report if there was something technical. But, typically, they won't be involved until there's some wreckage, until there's some piece of the aircraft that has to be identified, that has a part number on it, that has to be verified, that's when Boeing would really come into the picture. At this point, remember, this is mostly in operational investigation. What happened? Who did what to get up there? We still don't have any wreckage, so it's hard for Boeing to really make any kind of participation at all at this point.

SMERCONISH: You know, I'm also mindful of what went on with that notification via text. You will remember what I'm speaking of. It's probably been 40 days since that 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 its made public to the world-at-large?

SOUCIE: Always, always, always. Every investigation I've 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 involved, you take the time to do this right. You know, we have the Family Assistance Act. There are Protection Act here in the United States that -- where that would not happened 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's really unfortunate.

SMERCONISH: Colonel Michael Kay, our CNN Aviation Analyst and frequent guest on a -- all of our programs talking about MH370, joins us by phone. What is it Michael that you most want to see in the report that's to be released today in Malaysia?

LT. COL. MICHAEL KAY, CNN AVIATION ANALYST: There's a number of things Michael. I'm not just sure we're going to get it. Preliminary report just gives us facts. That's what it mandates it to do. It doesn't give us conclusions. It doesn't give us probability cause, and it doesn't give us analysis. Now, about four or five days ago, I was in the mindset that we're not going to receive Inmarsat analysis within that 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've been seeing coming out over the last couple of days. And I'm hoping and I'm really am hoping that the confidence in the Inmarsat data by the Inmarsat analysis and also by Malaysia which is the independent investigator in charge. I'm hoping that there will be a confidence (inaudible) that the data (ph) is actually sort of finally credible and finally sufficient to be able to go public and especially, you know, in part of the families.

SMERCONISH: David Soucie, one of the report that the Bangladesh Navy has dispatched two planes to the Bay of Bengal in response to that report that there could be a plane of some kind in those waters.

SOUCIE: I think it's about time. You know, the Malaysians have done such good work to try to restore some trust with the families by saying we're going to release the report by having -- allowing the interview. It was doing some really great things forward. And as soon as this report came out, they blatantly (ph) dismissed it. And so, they weren't even going to investigate. Every step they move forward towards the trust of the families, they do something to take it back. So I think it's -- I'm really pleased that the Bangladesh are sending something out to investigate. That puts it at risk. I don't give it lot of credibility myself, but that's not the point. The point is, the families do and you need to investigate that on -- for their sake.

SMERCONISH: Michael Kay, the Malaysian government has to know that whatever credibility they have left on the world stage in this regard is on maligned. You'd like to think that they've pored over this document. They fact check everything they're about to release, because if it should be poorly received, you think that there will be calls with the Americans or other governments to step in and cease control with this investigation.

KAY: Yeah Michael that's exactly right. But the thing what we've got to do is we're going to remember now that Malaysia was coming to a new phase of this investigation in terms of actually calling himself an independent investigator in charge. And now, the whole international investigation team comprises of six countries. It's not just Malaysia which to lead in the team. We got the NTSB from the U.S., we got the Accident Investigations from the UK, there will be ATSB which is the Australian equivalent, I mean, they got some very credible organizations from France, I mean, they got China as well.

So, you would like to think that all of five or all six countries have actually seen this preliminary report and agree with what analysis is in there, what facts are going to be released. And I also think we should take our hats off and give due credits to Angus Houston as well. He's actually taken this investigation from the very early days where it lost a lot of credibility because of what Malaysia was doing. And he's taken into place where I think people are a lot more confident in the transparency, in the openness in the way he just come out on the world's agent (ph) and fairly open with everyone. So I think we are in a difference phase of this investigation.

And as David Soucie said early on, I still think we need to be looking other of the various -- be very open. The Bay Bengal, let's also incorporate that evidence. Let's have a look at some radars a 1800 miles off the coast. What's on India's primary radar, what's on Bengal's (inaudible) primary radar? Let's try and get some evidence that corroborates, you know, other various (ph) that it could be if only to eliminate it.

SMERCONISH: Gentleman, as you point out very big moment today in Malaysia and the minute to report is released, will have it here on CNN.

David Soucie, Lieutenant Colonel Michael Kay, thank you both so much for your expertise.

Now that NBA Commissioner Adam Silver is urging a sale of the Clippers, the team's future rests on the NBA Board of Governors. But might they decide that forcing a sale sets a bad precedent. Plus, the execution that went horribly wrong. Does it really matter how a death row inmate dies?

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: That's when they close the curtain and he said "man."

UNIDENTIFIED FEMALE: Yes. He had cold body upper movement. He was able to lift his head and his shoulders from the ground (ph).

UNIDENTIFIED FEMALE: He was struggling to talk (inaudible) for the words that got out "man, I'm not and something's wrong."

(END VIDEO CLIP)

(COMMERCIAL BREAK)

SMERCONISH: It's an exclusive club, the teams that are members of the National Basketball Association. Commissioner Adam Silver wants Los Angeles Clippers' owner Donald Sterling kick out of it. And he's going to ask the 29 other owners, the members of the Board of Governors to force Sterling to sell his team. Several have already indicated that they're on board but others may feel that forcing Sterling's hand could set a dangerous precedent on team ownership.

And that's our unfinished story tonight. Either way, one thing is certain tonight to his fellow owners, Donald Sterling is now the equivalent of the third rail. He's too dangerous. Nobody wants to be seen with him. And yet, why we know he made ugly racist comments, we have to consider this question. Is forcing him to sell the Clippers going too far? Sterling might be a creep (ph), but he is the legal owner of that team.

We're joined by my Mike Pesca, a contributor to NPR and Slate. Who's host of Slate's podcast "The Gist" which debuts next week. And also with us, former NBA player Cedric Maxwell.

Mike, you wrote this. You said the process does raise some troubling issues. What are they?

MIKE PESCA, HOST, THE GIST: Well, I mean, we're also glad that out of this ugliness that we struck down this racist, lonesome (ph) guy, he seems to have finally got his (inaudible). But just here's just a few of the issues. One, the recording were probably illegal. There's certainly a violation of his privacy. Two, there's a mob mentality. When there's a mob mentality, we like the result, we usually don't question it, but it does seem like there was this ball rolling. Three, this is essentially a thought crime and the thoughts were terrible. And you compare it with his actual action, but we're striking out at the things that he said within the last week, and not that his much more pernicious actions where he denied housing to blacks and Hispanics.

And my biggest problem is there's no internal soul searching by the NBA. It seems like they're acting like we cauterize this wound and therefore it's gone. But what about when he was fined by the government for saying that black people smell, that it's fact a varmint (ph). And there was absolute silence on the issue by NBA owners. We're not seeing any grappling with the past. We're just seeing striking out in the press.

SMERCONISH: And you're saying that the two have been blended together. The housing background that he has where apparently, he acted on his racism. But I hear you say ...

PESCA: Yeah.

SMERCONISH: ... in this instance, where's the evidence that those sickening thoughts were acted upon in his capacity as an NBA owner? PESCA: It seems like when TMZ plays audio tapes that is a big public relations called fluffle (ph) and that's the thing to deal with. When there's this horrible instance of actual discrimination with real life victims that we have to drive out of society, zip, no one said a fact (ph).

SMERCONISH: Cedric Maxwell, thanks for being here. Respond to what you just heard from Mike Pesca.

CEDRIC MAXWELL, FMR. NBA PLAYER: Well, one thing I do agree with. I did not like the way the information was gathered. I think it was horrible. But at the same time, I am not letting off Sterling for that because, you know, you look at the things what you're saying (ph). The Commissioner said it right. You know, these things have gone on, has gone in the public now, so you have to deal with it. I don't think that one thing the Commissioner had to do was to appease one, one, the players in the league and then appease also the environment which was surrounding it (ph). You could not have him in this league if in fact you're going to go on for the witcher (ph) games.

So, I do agree with the Commissioner, but at the same time, I do agree I did not like the way that information was gathered in the first place.

SMERCONISH: Yeah. I'm going to speak to that.

MAXWELL: I'm not saying that you could (inaudible) the young lady.

SMERCONISH: I am going to speak to that at the end of this broadcast tonight in a closing commentary. You know, Mark Cuban seem to be headed down the road that you've articulated but -- then he quickly backed off. And I guess in the face of the snow ball that you referenced, are any of these owners going to make the points that you've stated.

PESCA: It would seem that Silver got them all in line. And so, one day, you have, I mean, you have Cuban giving an interview. You know, raising questions like whose next in this slippery slope and what if they don't like what I say or what if someone records another owner next day, we're a 100 percent behind Silver.

And look, I don't give -- I think Cuban's a thoughtful guy. I know he's generally a libertarian and I will give him the benefit of the doubt. People are allowed to change their minds. I think that's a good thing, you know. Or maybe saw the writing on the wall or maybe just said "This is not a hell 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 might play this out for so long that he won't be devested (ph) of the team and that's why I think my optimal thing that that the Commissioner could have done, I don't think it's realistic. I understand what he does, who's constituency is, what his powers are, I think you should have fined them, I think you should have suspended him, and I think you should have held over his head this idea that I could fire you, but I think you should try to convince him to quit and let the public speak and let the players speak and just be this big backlash that might have devalue the franchise come to sell.

SMERCONISH: Cedric, you've been in that NBA locker room. Is there a possibility that now there's 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 starred who another, it would be looked out in a whole different way now.

MAXWELL: Well, they're scary, really. You think about it. Anybody could be Mike. And you think of other job. If either you or I were Mike all the time and somebody came up about a conversation we have, we probably would be fired. We would not be around it all. The thing I like about the -- with new commissioner, he win. It was the fact that he put the owners on the owners and he say "Look, I want -- I don't have enough votes right, but what I'm going to do is I'm going to put your foot to the fire and there's going to be owner to owner to owner." What owner is going to say, "No. No, I want to have him around." What one is going to say "Yes, it is a public battle." I'll tell you what, one thing you're going to see right now is almost political suicide if you are an owner and you don't try to get rid of Donald Sterling.

SMERCONISH: No doubt about it and that's what you were referring to. Nobody could standout 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.

PESCA: I think not. And I think that that is actually kind of ashamed of it. I mean, this is a way for them to take a stance that makes it look like "Hey, we're (inaudible) out against racism." But racism is so endemic among -- at least this one owner maybe others, and never getting to the root causes. They're never talking about why we counted (ph) it for so many years. They keep kind of pat themselves on the back and say "See, we're against racist." I don't know who are they (ph).

SMERCONISH: I have to say, Cedric Maxwell, I'm shock the more I learned about what went on in the past. I've read the L.A. Times coverage about this guy paying $2.7, $2 or $3 million, the largest ever settlement of discrimination case of its kind. How in the hell was that not a bigger obstacle for him before all of these occurred?

MAXWELL: Well, I think that really is true. But I think that really the NBA look for that real smoking guns. Smoking gun was him going on saying "Look, I don't want black people at my game." One thing I was little confused about was the fact that, you know, not letting Sterling off the game, but I was a little surprise that he did not use the "N" word in this conversation he had with his girlfriend. I mean, I didn't understand, but so many things that kind of puzzled me about this begin.

SMERCONISH: Totally agree.

MAXWELL: Let me make sure you this. I've had to say that I am definitely with the Commissioner. I think he did the right thing. I'm thinking the pieces, 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 going to be the last thing you hear from Donald Sterling.

SMERCONISH: Got it. Mike Pesca thanks. Cedric Maxwell, a privilege. Thank you both for being here.

Hey, think about the phone calls that you've made so far this week. Would you be OK with all of them being splashed across say 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.

(COMMERCIAL BREAK)

SMERCONISH: So, did V. Stiviano break the law in reporting her conversation with Donald Sterling? In California, both parties must consent to it. Stiviano's attorney claims that Sterling knew he was being taped but we call the Los Angeles district attorney's office and asked if she's going to be investigated for privacy violations. And the spokeswoman replied and I quote, "I don't have any information that that would be the case."

Joining us is Michael Higginbotham, professor of constitutional law at the University of Baltimore and author of "Ghosts of Jim Crow" ending racism in post racial America. Also with us, CNN political commentator Margaret Hoover, a Republican consultant and author of "American Individualism." Margaret, should there be an investigation by the L.A. DA's office?

MARGARET HOOVER, CNN POLITICAL COMMENTATOR: Sure. And I think that's a very fair thing. She broke -- I mean, maybe somebody broke the law. I think it's fair to look into that especially as -- I mean, you and I know, we're in the media. We're journalists. We know that you can't do an interview with anyone without asking the first (inaudible) but that's along California. So, I think that's certainly a fair game. The issue though is does that make any of these moot? Of course it doesn't.

SMERCONISH: He's still a racist.

HOOVER: Yes. The character (ph) is what happens when nobody is listening or watching.

SMERCONISH: Yes. No doubt. He is still a racist. There's no one here are offering him a defense or an excuse, but, as I listen to that tape in the back and forth between them, and there's something else, there are two feeble needy people was the way in which I was reading those tea leaves (ph).

HOOVER: That's fine. I think there is this brave new world that sort of elders absolutely need some millennial generation in a sense that, you know, the kids these days know that anything they say is fair game.

SMERCONISH: He hope. HOOVER: And there are these tools everywhere and that's why they go to school and pictures are taken. They know not to take pictures at parties and put it them on Facebook because they can get kicked out of school. You know, this is something that maybe an 80-year old white billionaire who owns a basketball team hasn't woken up to yet, that these devices are everywhere, that who you are in private is who you are in public because -- and so, you can't really shield that. I think you've just have to know the character is. It is who you are regardless who is listening.

SMERCONISH: Professor Higginbotham, ironic that we're having this conversation the same week that the Supreme Court takes up the argument as to whether a warrant is necessary before law enforcement takes a good look at your Smartphone. React if you would, sir, to the privacy implications of this Donald Sterling case.

MICHAEL HIGGINBOTHAM, PROFESSOR OF LAW, UNIVERSITY OF BALTIMORE: Sure. Happy to do so. I mean, this is a classic First Amendment freedom of speech, marketplace of ideas dispute. Donald Sterling is free to say whatever he wants to say, you know, no matter how outrageous racist those comments maybe. But also, NBA players and fans are free to respond with the speech in response to his comments.

And what you're dealing with here is as long as the government doesn't come in and arrest somebody for what they have said, there really is no constitutional problem here. To use a basketball terminology, there's no harm, no foul. So, the only harm that's 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.

SMERCONISH: Is that how you look at it that this was a market response that the private entity, the National Basketball Association, you know, cleaned and policed its own house?

HOOVER: A 100 percent. I mean, this isn't the government. This isn't NFA listening into him and saying you're a racist. This is, you know, this is not an encroachment on. This is not a potential thought fine (ph) as your previous guest said. I mean, 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, you know, it's a fair game.

SMERCONISH: You know, Professor, it also comes on the heels of Secretary of State John Kerry having been recorded as putting Israel in apartheid in the same sentence and there's been a lot of blow back as a result of that. But, he was behind closed doors with world leaders and it was recorded. And I guess sir, my question is, should any of us have any expectation of privacy in 2014?

HIGGINBOTHAM: Well, I think in 2014, clearly, your expectation is somewhat reduced. But, California is still a two-party state where you must have consent. And so, Donald Sterling should have given his consent. And if he did not give his consent to this then he may have some remedies in the court. The problem that Sterling has thought in 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 about what he said, by the racist comments.

SMERCONISH: You think political correctness will keep the L.A. DA's office from taking a look at this?

HOOVER: I don't think so. I don't think it can. By the way, it's also a little different talking if you're the leader of the free world and secretary of the state in a room with world leaders talking about Israel versus, you know, a domestic dispute ...

SMERCONISH: Or Mitt Romney our fundraiser?

HOOVER: Or make Romney to fundraise. I mean, he was, you know, this is a public event talking to supporters where the implications are very different than private enterprise.

SMERCONISH: Margaret Hoover, Professor Higginbotham, thanks so much for joining us, we appreciate it.

So we know that Sterling is a racist but, is V. Stiviano a criminal? And could that tape that banned Sterling for life put her in jail?

And Donald Trump is on the news again. He seems that he thinks that he can run the country because he can run a country club.

(COMMERCIAL BREAK)

SMERCONISH: It's time for Headlines Redefined. The headlines, they got the story half right. Three political ones tonight. First up, from the Milwaukee journal Sentinel, "Federal judge strikes down Wisconsin's voter I.D. law." The judge in this case, a federal judge by the name of Lynn Adelman said that the state lack the requisite rational for imposing voter I.D requirements.

As a matter of fact, the judge said that in person, voter impersonation in Wisconsin is nonexistent. And still 9 percent of that electorate. 9 percent of Wisconsin voters, meaning, to have 300,000 people lack their requisite voter I.D. to allow them to vote. Who are they? The lower income and the lower educated, hence, the judge found that this case represented a violation of equal protection. You remember the headline?

The headline on this case said "Federal judge strikes down Wisconsin's voter I.D laws." What I would have written, "Solution still searching for problem." The number from Politico, "The not-so-jolly rancher; how federal officials botched the Bundy cattle roundup."

Jon Ralston just wrote this voluminous story for Politico where he gives you all the background on what went on with Cliven Bundy. I know the media has moved on from Cliven Bundy because now we got the Donald Sterling to talk about. But this story is really worthy of all of our time. I read it and I said thank God there wasn't bloodshed with regard to this guy and all of those whom he attracted. And there were a lot of federal screw ups, at least according to Ralston's report, it's not the least of which was that the federal officials bungled a round up of the cattleman's livestock. On expert said, we didn't even follow our own protocols. We're all very fortunate that nothing worst happened with regard to Cliven Bundy.

You remember the headline on this story? The headline that said, "The not-so-jolly rancher; how federal officials botched the Bundy cattle roundup." What I would have said, hey Mr. Bundy, "This land is not your land." And my favorite, my favorite comes from the Daily Mail, "Donald Trump says he'll fix the country just like he fixed his country clubs."

It's true that Donald told the Mail that his credentials to qualify him for running for the highest office in Ireland is that he's has fixed this country clubs and now he thinks he can fix the country at large and he said it's absolutely possible, absolutely that he'll be running for president in 2016. You know how you can recognize that we're getting close to a presidential election in the Untied States, it's when the Donald again floats this trial balloons and it was pointed out by business insider.

He's truly been doing it for a quarter century plus, more than 25 years. I remember, at the White House correspondence dinner, just what? Two years ago, when President Obama weighed in on Donald's qualifications to be our chief executive and he gave a tip at the hat. He noted that Donald had recently mediated a dispute on celebrity apprentice as to who screwed up on the men's cooking team. Was it little Jon (ph) or was it meat loaf?

You remember the old headline? The headline that said, "Donald Trump says "he'll fix the country just like he fixed his country clubs." I got a better one, "Trump/Busey, as in Gary Busey in 2016." Clayton Lockett was put to death last night for a vicious murder but the execution did not go as planned.

In an exclusive interview, the inmate's lawyer who witnessed the execution would tell us exactly what he saw.

(BEGIN VIDEO CLIP)

UNIDENTFIED MALE: It almost looked like he is trying to sit up on the table. His eyes are open at times. He was muttering words that were incomprehensible.

(END VIDEO CLIP

(COMMERCIAL BREAK)

GOV. MARY FALLIN, (R) OKLAHOMA: The State needs to be certain of its protocols and its procedures for executions and that they work for that reason. I've asked last night for review of the Department of Corrections, execution protocols and for consulting further with the Depart of Corrections Director, Robert Patton, we agree that an independent review of the Department of Corrections procedures would be effective and also appropriate. SMERCONISH: Governor Mary Fallin of Oklahoma is talking about the Botched Execution last night of Clayton Lockett, a convicted murderer and rapist. He was to be put to death by a cocktail of three drugs, for the first time that Oklahoma was using that procedure, but after the first drug was administered, something went horribly wrong. The drug didn't work as it was supposed too. And eyewitnesses say that Lockett was visibly still awake and moving.

Officials then 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 last night, but Oklahoma official put that on hold.

Tonight, I spoke exclusively to Dean Sanderford, Lockett's attorney who witnessed the beginning of the execution. And Madeline Cohen, Attorney for the second man who's scheduled to die.

Mr. Sanderford, Ms. Cohen, thank you so much for being here. You bring unique perspectives to CNN and we appreciate it. I think that our viewers will be interested to why your respective clients were on death row. Mr. Sanderford, am I correct that your client was convicted of binding an 18 year old with duck tape, forcing her to watch as an accomplish for 20 minutes dug her grave then shot her and buried her alive. Is that a fair encapsulation?

DEAN SANDERFORD, CLAYTON LOCKETT'S ATTORNEY: That's a fair encapsulation, he was 19.

SMERCONISH: 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.

MADELINE COHEN, CHARLES WARNER'S ATTORNEY: Yes, that's accurate.

SMERCONISH: Mr. Sanderford, tell us what you witness.

SANDERFORD: What I witness was -- so, when they pulled the curtain up, Mr. Lockett was already stretched out on the (inaudible), the IV line wasn't -- they've already been attached. He was covered with a sheet, we can see then. When the execution begun, it went probably how it was intended too. They started with the first drug, he's eyes started to close, there's (inaudible) and about nine minutes then a physician announced that he was unconscious.

The warden then announced he was unconscious and I believe at point is when they started administering these second two drugs and that's when things started to go array. About two minutes into that Mr. Lockett started twitching, the twitching got worst overtime, it (inaudible) him. It almost looks like he was trying to sit up on the table, his eyes are open at time, he was muttering words that were incomprehensible. But it look the man coming awake out of a, you know, the surgical -- an injection of coma for surgery or something like that.

After about 4 minutes of that, it was just getting worst and worst and they dropped the curtain and we didn't see anything else after that. And 10 minutes after that, the Director of the Department of Corrections come in and said that they were calling off the execution and staying for his execution. And that made me believe that Mr. Lockett was probably still alive that they were kind of try to keep him alive. There was only 20 minutes later when we can essentially take off the premises that we found out that he had died of a heart attack.

SMERCONISH: Ms. Cohen, what does the future now hold for your client?

COHEN: Well, the first thing that need to happen is that an independent investigation needs to be conducted and to what happened to Clayton. And that is not an investigation by a member of Governor Fallin'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 illegal action to prevent any executions, particularly the execution of Charles Warner who's at most immediate risk until all of these questions are answered.

SMERCONISH: I noted on my radio program today by a way of example that the New York Times had been coverage of the 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 within very short order. In other words, from 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 man on death row.

SANDERFORD: You know, I think that's certain, the coverage that's going on right now, but if you take a lighter view on most of the coverage of Mr. Lockett case has been about his crime.

COHEN: In many ways that's one of things that is problematic 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 from many, many years.

SMERCONISH: But maybe the response to that is because the process seems open ended, it goes for decades. There's a case with which I was involve in Pennsylvania when literally on for 30 years without any closure or any resolution.

COHEN: Which is another problem with the death penalty and the way to speed it up faster would be to throw constitution out the window. I don't think we're quite ready to do that yet.

SMERCONISH: Well, I'm not advocating that. Madeline Cohen, Dean Sanderford, thank you so much for joining us.

Let's be perfectly clear about Clayton Lockett. He was seriously bad dude, no matter how we feel about capital punishment. Did his Botched Execution amount to torture? Let's talk about it with Arthur Caplan who heads the Division of Medical Ethics at New York University's Langone Medical Center.

Dr. Caplan, you're the medical ethicist. First, try and convince me that I should care about either of these individuals.

ARTHUR CAPLAN, DIRECTOR, DIVISION OF MEDICAL ETHICS, NYU LANGONE MEDICAL CTR.: 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 without torturing people. In other words, strange as this may seem Michael, the ethical issue about letting these guys suffer isn't that, "Oh, we were so concerned about somebody who buried alive, an 11-year old or something." It's that the dignity of us killing them, we don't torture people, we just eliminate them. If we can't do it in a humane way, we can't do it without causing to suffer, it's us, that in a sense has a problem.

SMERCONISH: OK. We clearly can get it done though. We have three -- Jack Kevorkian? We have three states now with lawful assistance suicide. So where's the issues?

CAPLAN: We have medicines. Well it's -- this strange too. You think about the death penalty, we went to injection it was supposed to be more humane. Then Doctors slowly have removed themselves from the process of lethal injection. They don't want to do it. They say it's unethical. You got immature are going on here, you know. People bring up something in the back room, they're not saying what it is, somebody is trying to give this guy an I.D., clearly what happen in this case as it popped out or it penetrated the vessel.

We don't have the right expertise this isn't right way to do it if you're going to do it we've get away from something that requires if you will medical scientific expertise to get it done in a humane fashion. It's not that we couldn't come up with something.

SMERCONISH: Do you think it's a jest? Wouldn't a firing squad to solve that?

CAPLAN: Well, you know, guilty in, I mean there a lot of modes of execution that are probably going to be better at this point than having someone courtly trained grew up something in the back so the speak in the kitchen say "I've never tried this before, and let see how it goes"

SMERCONISH: When I read the first story I said, well OK this guy raped an 11 year old girl, how horrific, no, no 11 month old...

CAPLAN: I mean.

SMERCONISH: Like half this guy...

CAPLAN: And I'm sure there are people out there looking and say, you know, "Really he suffered, could you extended (inaudible), I mean, you know, but the point of capital punish is taking the 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 were a bad guys and impulses there to make them suffer but execution if it's going to stay legal, if and I think it's dying. But if it's going to stay that way, it's going to be without suffering.

SMERCONISH: What was the mechanism of death in this case, what is it that you think happen? I said in the intro that the medication didn't work. I'm no so sure that's what -- I think that they couldn't hit the vein in the way that they need to, you tell it today.

CAPLAN: It sounded like they -- what happen is vein is like a cylinder that push through the poison, which they were trying to use on him, leak in to the rest of his body. They didn't quite give him enough, but they got him enough to cause his heart to start to go in the -- it is the wrong and ultimately caused a heart attack. So they kind of partially poison him, I suspect.

SMERCONISH: In terms of the political dynamics of this and I get what you're saying that fewer medical practitioners are willing to be involved in the process ...

CAPLAN: Right.

SMERCONISH: ... isn't there are also Dr. Caplan something go on based on the medications that are used where European have said "Hey we no longer want to be involve in this process and therefore we're not going to allow our meds to come in to the United States if that's how they're going to be utilized."

CAPLAN: Reminds me a little bit Michael of the abortion controversy. We can't get it made illegal, so you trip away at it.

SMERCONISH: You're right.

CAPLAN: He didn't say, "I'm not selling you the drugs." Lawyer say, "it's going to take 30 years on appeals," doctors say, "we're not going to participate." You know, you got so many obstacles here. Let's face it. The death penalty is on death row. I mean you're tripping away at it. I don't know if it's going to be able to endure.

SMERCONISH: Might -- Was going to say, might this case represents sort of the death now of the death penalty. Because now you heard the lawyer who am I interviewing, he's got 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, and then they say, "Oh my God, this is barbaric, we got to end it."

CAPLAN: And, you know, we had botched in Ohio, remember that. So it's another screw up in an execution just recently. So it's in trouble. And I'm not saying I'm pro or anti the death penalty, what I am saying is if we can't get it done efficiently, reliably and without being cruel it's going to in way.

SMERCONISH: And seems to me like we can't get it done.

CAPLAN: We could, but that is ...

SMERCONISH: If the people wanted we shouldn't wave the white flag because this thing was missed handled. Probably ...

CAPLAN: I would agree with that but I will say this, you got to be transparent, you got to make your protocol in that. You know, the first time to try your new drugs is not during the execution. SMERCONISH: And they shouldn't left the curtain up. Frankly I think they got themselves in hot water by trying to hide whatever...

CAPLAN: Yup, going on.

SMERCONISH : ... was going on there. Nice to see you Dr. Caplan.

CAPLAN: Pleasure.

SMERCONISH: Arthur Caplan, thank you. So her lawyer says that V Stiviano reported Donald Sterling with "mutual consent." But what was her motive and why does it sound like she was cross examining him?

(COMMERCIAL BREAK)

SMERCONISH: 1 Last Thing, here's what most important about Donald Sterling let's anyone confused what I'm about to say. The Clippers owners said appalling, racist and in defensible things that were captured on tape. Let me say it again, the man's words were inexcusable. Yes, he may have 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? OK. Having listened to the tape several times, I have got to say that I'm struck by enabler.

There many questions outstanding as the circumstances that brought his views to light. And I'm hoping we get some answers. Like who rolled the tape? Who knew the tapped was being rolled? And who release the recording? Those are just a couple of the things that I'm still wondering. Also isn't investigation warranted by the Los Angeles County District Office?

You know the women whose voice is heard a long with Sterling's is being sued by Sterling's wife of more than 50 years because the wife believes that marital and community property was used to the buy the lady a $1.8 million duplex, 2012 Ferrari, three Bentleys, a 2013 Range Rover plus over $240,000 in living expenses.

In a compliant that was filed in March, the wife maintains that the woman who's know as V Stiviano among other things, "Engages ion 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 just how ugly it got on tape from Sterling.

(BEGIN VIDEO CLIP)

DONALD STERLING, LOS ANGELES CLIPPERS OWNER: Yes, it bothers me a lot that you want to broadcast that you're associating with black people, you don't have to.

V. STIVIANO: You associate with black people.

STERLING: I'm not you and you're not me. You're supposed to be a delicate white or a delicate Latina girl.

(END VIDEO CLIP) SMERCONISH: As I said at the outset 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 then respond by saying this.

(BEGIN VIDEO CLIP)

STIVIANO: I'm sorry. Is there anything that I can do to make you feel better?

STERLING: No, you can never make me feel better. Because I'll fight you, do you want to fight?

STIVIANO: Honey, I'm sorry.

STERLING: I'm sorry too.

STIVIANO: I wish I can change the skin, the color of my skin.

(END VIDEO CLIP)

SMERCONISH: She's sorry, she baited him and she go to them. Almost as if she was methodically 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 tell where, the proper response was for her to slap him and then leave.

I'm Michael Smerconish. I will see you back here tomorrow night. CNN SPECIAL REPORT with Don Lemon starts right now.