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Awaiting for the Grand Jury; When Protestors Take It Too Far; Obama Orders Sweeping Immigration Reform; Interview with Congressman Joe Barton of Texas

Aired November 22, 2014 - 09:00   ET



MICHAEL SMERCONISH, CNN HOST: Hello and welcome to the program. I'm Michael Smerconish. As we wait for the decision from the grand jury in Ferguson, Missouri, key questions you may not have heard. Life and death fears among the police. I'll talk to a Ferguson cop who says every police officer he knows has received death threats.

And I'll go inside a demonstration to grill a protester who says it's time to turn the tables.


UNIDENTIFED MALE: I'm praying for your death. And your death and your death.


SMERCONISH: He wants to make the police the target.

And I'm an attorney, so I'll take a hard look at the evidence with another lawyer who knows it even better than I do. I want to dig into the most important information that the jurors heard and saw.

Also, a journalist who is standing up for Bill Cosby. She calls the media coverage of sexual assault charges against him a crucifixion. I'll challenge her to substantiate that. All that and much more.

Let's get started.

Up first with a grand jury decision on the Michael Brown case expected at any moment. Ferguson, Missouri is literally like a city waiting for a hurricane. Businesses are boarded up, many still open for business but with almost no customers, except for people stocking up on basic supplies. Only gun stores have seen a lot of business with a 300 percent rise in sales reported.

The governor has declared a state of emergency, and activated the National Guard. Hotels are full of police reinforcements and the FBI has sent in still more agents to back up the local forces. The family of Michael Brown and leaders on all sides are pleading for calm whether or not the grand jury decides to indict Officer Darren Wilson in the killing of Brown. Me, I worry that people will riot before considering the evidence the grand jurors heard.

I think the presence of so much media could itself insight bad behavior. I'm praying for rain. As they await the decision Michael Brown's parents have been on a roller coaster, their lawyers say they don't accept this grand jury process as legitimate. Joining me now from St. Louis is Anthony Gray. He is one of the Brown family attorneys.

Mr. Gray, I certainly understand the parents hoping that the police officer who took their son's life is indicted. As for the rest of us how could we possibly be rooting for any kind of an outcome until we evaluate all of the evidence presented to the grand jurors?

ANTHONY GRAY, ATTORNEY FOR MICHAEL BROWN'S FAMILY: I understand the general public having that type of attitude about the process and about the evidence. I get that. They don't necessarily have a stake in the game. They haven't been there since day one. So your average Joe blow citizen is probably waiting until they, you know, hear everything in order to make up their mind. I completely understand that and that's reasonable.

SMERCONISH: The family doesn't accept this process as being legitimate. You and the other attorneys don't accept this grand jury process as being fair. Why not? Tell me specifically what issues you have with the way it's been conducted?

GRAY: Well, it's not necessarily the way it's been conducted. It's the perception going into the grand jury process. We've said all along we thought this prosecutor's office had a conflict of interest. Why? Because the officer that is under review also currently has cases with this prosecutor's office. And if that officer is indicted, those cases do not go forward.

In fact, you have the jeopardy of opening up old cases. So they have a vested interest to preserve the cases that they have and to protect the cases that they have already prosecuted by ensuring that this officer, by perception, is not indicted. If he is indicted then quite naturally those cases are now in jeopardy. And then the old cases are subject to being reopened

SMERCONISH: But by that criteria wouldn't the prosecutor Macala (ph) always be in a position of having to recuse himself? Because presumably all police officers who would have a case before him would have business before him as well with someone they have investigated or arrested>

GRAY: No doubt about it. And the thing is and fortunately, these police shooting cases are an aberration. We don't have this every day and we hope that it doesn't become an everyday thing in the future. But we feel in this particular case especially with this high profile nature and this global attention that it should have at least got a prosecutor outside of that office, a special prosecutor, that wanted to pursue this case and then allow the chips to fall where they may and he could have very well been on the sideline and watched that process and he would have been clean from the very beginning. So that's our contention and we feel that there is a direct conflict because of the things I just stated.

SMERCONISH: I know that you have been critical of Governor Nixon declaring a state of emergency. Why?

GRAY: Well, not necessarily critical of the state of emergency. I think the state of emergency may have been valid for the reasons that he articulated. What people in the community criticize was the lopsided way he did it. It was almost a message to the community and the protesters, he never admonished the police officers' behavior, which instigated most of the clashes that you've seen on TV and all of the images. All we said was "governor, you should have been a little more even handed about your warnings and about your admonishment and what you would not tolerate." So we came out against that and we tried to send a balanced message.

SMERCONISH: How are the parents awaiting the news and how long after a decision is announced will they speak?

GRAY: As far as how long after the announcement we're still trying to calculate that. Not quite sure because you know, a lot of emotion, we anticipate one way or the other may flow and obviously we got to gather ourselves before we come out and speak. Preparation, I don't know how you prepare for it. So, it's difficult to speak to that. I could tell that they have been fully informed that there's different outcomes that may result from this. And so they have been informed, how they are going to process it is anybody's guess.

SMERCONISH: How well has the office of the prosecutor kept the family informed as best he can without revealing what goes on in the grand jury about the process?

GRAY: Well, we've been in communication. I don't want to give a degree of frequency but I have had communications with the prosecutor's office, we are operating from a kind of a memorandum of understanding in the way that we will communicate going forward. I'm comfortable with our understanding. And hopefully we will fulfill it the way we described. So the family is anticipating receiving some kind of notice before there is a public announcement of this decision. And so far our communication has been on that level and we hope we'll keep that the way.

SMERCONISH: Quick final question. Has the Justice Department similarly kept you informed of the status of their investigation?

GRAY: Not necessarily the status but they, the Justice Department has reached out. Both the Justice Department and St. Louis County in terms of certain key things that are going on in each office they have made efforts to reach out and communicate those things to me without getting into the details of it.

SMERCONISH: Anthony Gray, thank you. We appreciate you being here.

GRAY: Thank you, Mike. Take care.

SMERCONISH: We're going to take a quick break. And when we come back, we haven't seen or heard from Officer Darren Wilson since Michael Brown was killed. My next guest has and you'll want to hear what he has to say, and later, in the program, in the battle between demonstrators and the police, what happens when the police become the victims?

Stick with us.


SMERCONISH: Welcome back. Let's consider this. If Darren Wilson is indicted what will go through the minds of police officers across the country? If I find myself in a life threatening situation will I hesitate? Will the law back me up? How safe am I? I'd be interested to get Officer Wilson's perspective on that but we haven't seen or heard from him since the shooting, not since August 9th, the day that Michael Brown was shot and killed.

All we heard of the reports that if he is not indicted he is going to leave the Ferguson PD or he and his legal team are confident in the grand jury investigation. One of the few people who have spoke with him and his attorneys is Jeff Roorda, the business manager of the St. Louis Police Officers Association and a Missouri state representative and he joins me now.

Mr. Roorda, I understand that you spent last Thursday at least a portion of Thursday, with the officer. What's his attitude like?

JEFF ROORDA, BUSINESS MANAGER OF ST. LOUISE POLICE OFFICERS ASSOCIATION: Well first of all, Michael, I want to make it clear that I don't speak for Darren or for his legal team. You can imagine what a tough time this is for him and his family and really for the entire law enforcement family.

SMERCONISH: What's his attitude like?

ROORDA: I think he's got his head screwed on pretty straight considering all he has been through. But, you know, we're all worried and he's no different, about the safety of police officers ahead of this very tumultuous decision.

SMERCONISH: You are worried about the safety of all police officers because you say virtually every police officer you know has himself or herself received a serious threat. Is that true?

ROORDA: Well, those of us that are close to this investigation have, I mean, there are very broad threats against law enforcement, and despite this myth of peaceful protests in the wake of the Michael Brown shooting, we had violent attempts to kill or injure police officers every night for two weeks on the streets of Ferguson, and I'm afraid in the wake of this decision that we'll see far worse.

SMERCONISH: And Mr. Roorda, you are concerned in part because you don't think that the officer, Officer Darren Wilson, will be indicted. Why don't you think he'll be indicted?

ROORDA: Michael, what I know of the forensics and ballistic evidence and witness statements support Officer Wilson's claim that this was a shooter or killer - kill or be killed situation and that he acted in self defense.

SMERCONISH: Is there one particular part of the scenario, one part of the evidence that you would point to and say this is something that I find significant? ROORDA: Well, you know, the first shots were fired inside the car as

Michael Brown attempted to remove the officer's gun, apparently. And then when Mr. Brown charged the officer a second time, he was left with only one alternative. When someone tries to take your gun away and then they come at you again, it is - you are left with the alternative of using deadly force.

SMERCONISH: In other words, in lay terms you see this as a kill or be killed scenario, and that's how you expect the grand jurors will react to it?


Again Michael, we don't know everything the grand jury knows. I'm keeping an open mind and I ask that everybody following this do the same thing.

SMERCONISH: I said that to Attorney Gray at the outset of the case. One of the problems that I have with it, Mr. Roorda, is that it seems that all across the country, so many who frankly don't have a stake in the outcome because they are not in Ferguson, nevertheless are rooting for one outcome or another. And I keep saying that the prosecutor in this case has promised transparency, he has said that every bit of evidence, this is unusual, that was put before the grand jury will be made public. Wouldn't we all be well served by catching our breath, reading all of that information as soon as it's put on line, and then making our decisions?

ROORDA: Yes, that's why I've been very careful to say Michael, that from what I know of the evidence, I believe Officer Wilson to be innocent. There's additional evidence that comes forward as a result of the grand jury hearing, then I'll reconsider it and I hope that people that think he's guilty will reconsider what they believe once they have heard what the grand jury has heard. But there needs to be somebody speaking for this officer because all we hear about is folks that want to try him without the benefit of hearing any evidence.

SMERCONISH: I'm not going to ask you his whereabouts. I know you wouldn't tell me if I were to. But the fact you met with him on Thursday -

ROORDA: I don't know those, Michael.

SMERCONISH: OK. But the fact that you bet him on Thursday tells me that to a certain extents he remained proximal, in close proximity to Ferguson. Is that at least a fair characterization?

ROORDA: Well, I'm not going to go into the when or where for security reasons. I'm not even going to go into whether I spoke with him by phone or in person. But you know, we are all worried about his safety and justifiably so. SMERCONISH: Governor Nixon has declared a state of emergency in this case. You heard the criticism before that police need to be careful because if there's a reaction of a show of strength by law enforcement, it may have the unintended consequence of bringing out the worst of the protesters. Do you buy into that criticism?

ROORDA: Not at all, Michael. I really kind of sick of hearing that the constant blaming of the police for the behavior of the crowd. We saw every single night up there for those two weeks of violent protests we saw the police change their tactics every night. They adjusted to the realities on the ground and we saw the same outcome every night. That was violence, attempts to kill police, attempts to injure police, looting, burning buildings. This is not about the police. This is about the intentions of the crowd. And that crowd after dark had very, very bleak intentions.

SMERCONISH: Jeff Roorda, thank you so much for joining us.

ROORDA: Thank you, Michael.

SMERCONISH: We're going to take a short break.

When we come back, a mountain of evidence for the grand jury from crime scene forensics to autopsy results to Officer Darren Wilson's own testimony. I'm an attorney but I'll turn to another lawyer who knows this evidence very well. The two of us will try to get to the bottom of the most important facts, the key stuff that will drive the grand jury's decision. Don't go away.


SMERCONISH: Welcome back. Nine of the 12 members of the grand jury must decide if there is sufficient evidence to indict Officer Darren Wilson. As an attorney I've looked at what we do know and I'm suspect of the grand jury's ability to indict based on the evidence that has leaked into the press. I can see a scenario where they can conclude that Wilson reasonably believed that he faced death or serious bodily injury.

Let's drill down on the grand jury process because it's very unusual in this case, normally the prosecutor selects limited evidence for the jurors to consider, but with this panel the prosecutor has conducted what my next guest calls as a super grand jury. The jury has looked at a mountain of forensic evidence and heard medical reports.

Also unusual the defendant Officer Darren Wilson took the stand and testified. And the prosecutor Robert McKenna (ph) says that as soon as the decision is announced all of the evidence will be released, made public. Normally grand jury proceedings would remain secret.

Joining me now to help figure out what to look for in all of that evidence is CNN legal analyst and criminal defense attorney Mark O'Mara. OK. Mark, at some point in the future, a mountain of evidence is going to be put on line. You're going to look for certain things. For example, you want to see the police officer's statement. What are you looking for in particular? MARK O'MARA, CNN LEGAL ANALYST: Well, with Wilson I want to see

everything that he said about how he was dealing with the event, what he was perceiving and how he perceived Mike Brown. But even more importantly than what he said we then use that as sort of the gold standard to look at everything else that we find out. Every other witness statement - does it conflict with Wilson's statement, does it comport with it. So his statement is sort of going to be the foundation from which we interpret all of the other evidence.

SMERCONISH: You're going to I'm sure look at the crime scene forensics. What in particular is Mark O'Mara looking for?

O'MARA: I'm looking for anything that will tell me any evidence of where Mike Brown was and how far away Darren Wilson was and sort of how that happened. I'll give you an example of something I was thinking about. We know now that Mike Brown was shot therefore bleeding. If we sort of follow that trail of blood away from the car, we'll see whether or not maybe Mike Brown was further away from the car and then came back, because we'll have a trail coming back. So there is forensic evidence like that then I'm presuming the forensics are there. We just don't know about.

SMERCONISH: In other words, you want to see by virtue of the blood - is there evidence of him moving back toward the officer or stopping where he was and as some say putting his hands up and surrender.

O'MARA: In a perfect world those drips of blood will be consistent walking away -


O'MARA: And will be quicker running back. That might be there.

SMERCONISH: Eyewitness accounts. We know of Dorian Johnson because he got a lot of face time, certain other eye witnesses did as well. But much like the Trayvon Martin case, there are individuals who we don't know their identity, but they may have seen something and spoken to this grand jury.

O'MARA: One thing we do know is that we probably know less than five percent of the evidence so. We know that there's a mountain, much more evidence to go. We want to fill in all of the holes with ourselves. But we have to look at the eye witnesses on all sides of it and then put those all together to try and get a three dimensional overview of what really happened.

SMERCONISH: How instructive in terms of figuring out what really went on here, multiple, the autopsy reports?

O'MARA: Barely but I don't think they are going to be dispositive. Because we know he was shot. They can't tell us how far away he was when he was shot. We know the shots went in, which ones came back out.

SMERCONISH: Can they tell us if his hands were up? O'MARA: No. They really can't.


O'MARA: Because if there was a shot through the palm then yes. Anything other than that and the one shot that people focused on the arm you can twist an arm back and forth, up and down, it does not give a positive indication of what he was doing.

SMERCONISH: Another element that should be made public as soon as the grand jury decision is announced, audio transmissions from Officer Wilson's squad car. Talk to me about that.

O'MARA: My understanding of what happened was when he realized that these two guys may have been involved in a robbery and called up for a backup. But then there was a tussle at the car and his radio actually got switched over to a non-police or Ferguson Police Department band. So there is information that we haven't heard that we at least have found out is out there. That's going to be very significant because whatever Wilson may have said at that point can give us some information as what he was thinking.

SMERCONISH: Are you saying that there might be an audio recording of the incident as it took place?

O'MARA: It could be. Because if he was on radio, and was giving information and he may have had it pressed down, may have had some information what was going on, we just don't know because it's part of the 95 percent.

SMERCONISH: OK. If the channel were changed to a non-emergent channel, I think that's what I hear you saying - is that a channel that is in fact recorded in the same way that a typical emergent channel would be?

O'MARA: Yes. All of that would be recorded. Not necessarily that he would have to have had the radio on for to it to get to the band.

SMERCONISH: OK. One more element in terms of the evidence that Mark O'Mara will find most significant. Injuries to the police officer. What are you looking for?

O'MARA: You are looking for something that's going to give us an insight as to what Officer Wilson was thinking. So if he was injured in the car that evidence is a couple things. One, that Brown is being aggressive. And if he was shot and still moves back towards Wilson that evidence is to me he's not worried about a gun which would give Wilson a real concern.

SMERCONISH: Another aspect of this that I want to hear you weigh in on. I keep hearing in the media - well, you know, the universal sign of surrender is to put one's hands up. You've got a lot of experience in handling criminal cases so walk me through a scenario where a police officer has someone that he's dealing with that he wants to subdue verbally. What would he do

O'MARA: Get to the ground. Get on the ground. If you're within 15, 20, 30 feet away and a cop has ability to talk to you what they are saying is get down, get down, get down. Spread eagle. We've all heard that. That's really what a cop is going to tell to you do.

SMERCONISH: We're hypothesizing here.

O'MARA: Of course.

SMERCONISH: But what you're saying is that you don't suspect that what Wilson would have been saying in the heat of the moment is put your hands up. He'd have been saying "get down, get down."

O'MARA: And again, Mike Brown may have been surrendering with hands up thinking that's what he should do but the response of an officer, any officer is going to be get down because that's where you have the most control over you.

SMERCONISH: What a great analysis. Thank you so much, Mark O'Mara. Good to have you here.

I have to take a quick break. But consider this. Demonstrators have been on the streets of Ferguson virtually every night since Michael Brown was killed in August and most of the time they have been peaceful. But some protesters simply see the police as the enemy and actually try to goad them into a fight.


UNIDENTIFED MALE: Shoot, shoot, shoot.

I'm praying for your death. I'm praying for your death and your death and your death.


SMERCONISH: Some protesters want to spark violence between themselves and police. Up next, a man who calls himself a citizen journalist, I might call him something else entirely. You'll decide for yourself when we come back.


SMERCONISH: Should the grand jury in Ferguson choose not to indict Officer Wilson, all attention will shift to the demonstrators in the hope that protests remain non-violent. But at what point does a peaceful protest cross the line? And what's the responsibility of those who take to the streets to make their voices heard?

I want to play for you a video from our affiliate KTVI that will test your idea of where protesters cross the line.


BASSEM MASRI, PROTESTER: What are you doing here, bro? The (EXPLETIVE DELETED) out of here, man, with your coward ass bullies.

REPORTER: That's the voice of Bassem Masri, who streamed this video live at a time.

MASRI: Coward. Straight pig out here. Straight (EXPLETIVE DELETED). You got to go. Your life is in danger, homey. You better go.

REPORTER: Another officer faced this.


REPORTER: Citizens surround him and chant.

CROWD: Shoot, shoot, shoot, shoot!

MASRI: I'm praying for your death. I'm praying for your death and your death and your death.


SMERCONISH: The man shooting that video and streaming it live for the whole world to see is Bassem Masri. He joins me now from Ferguson, Missouri.

Mr. Masri, did you spit on a police officer?

MASRI: No. No, I didn't. That was an expression that we use in the Arab, you know what I'm saying? Basically, it's just a sound of me being me spitting. It's not what I was actually doing. So, yes --

SMERCONISH: You've been charged with spitting on a police officer, am I right?

MASRI: Yes, they believe videos and they believe Twitter trolls before they actually look at evidence. But that will get thrown out of court. That's cultural background. So, it's all good, you know?

SMERCONISH: Do you think -- do you think you're helping the situation if that's the behavior in which you're involved?

MASRI: Well, you know what? I don't think we should be looking at citizens about how they react towards their public servants. It should be the other way around.

Now, what you saw right there was reality TV. People are pissed off about how they're getting treated in the streets and how people are getting killed. They should be looking at that besides our reaction. We have a right to be mad. Our anger is justified.

So, any other narrative besides that is just people getting off the subject of justice for Vonderrit Myers and Mike Brown. Other that that, I mean, there's no --

SMERCONISH: I don't buy into that. I'm going to tell who else I don't think --


MASRI: Well, it's on you if you don't buy into it or not. You know what I'm saying? Because this is our community.

SMERCONISH: OK. But -- MASRI: It's not somebody from the outside to judge.

SMERCONISH: Mr. Masri, let me tell you who else I think doesn't buy into it and that's Michael Brown's father. I'd like to show you or at least allow you to listen to what he's had to say about the situation.

Roll that tape.


MICHAEL BROWN, SR., FATHER OF MICHAEL BROWN: I thank you for lifting your voices to end racial profiling and police intimidation. But hurting others or destroying property is not the answer. No matter what the grand jury decides, I do not want my son's death to be in vain.


SMERCONISH: Mr. Brown has made a plea for calm. The president has made a plea for calm. Eric Holder has made a plea for calm.

And you're taunting police officers by calling them cowards, pigs, bitches, and, quote-unquote, "I'm praying for your death." Aren't you -- aren't you contradicting what those three gentlemen asked for?

MASRI: Well, that was October 9th. You know, ever since then, I've been very calm, you know what I'm saying? That was just three, four minutes of me being a little bit emotional after they just killed somebody. So, yes, maybe they are taking that a little out of context.

I respect Mr. Brown, ain't going to be no violence. We're taking de- escalation courses. We've been doing our part.

Anytime there's anything that goes on, the police have agitated it. They're going to have to learn how to police us. We don't have to learn how to conform to them. They serve us. We don't serve them.

I don't know what people get about this where we have to bow down to police everything that they say. We got freedom of speech in this country and I can push it to the limit any which way I choose. If the police don't like it, they need to change themselves.


SMERCONISH: Right. You can't run into a theater and shout fire either. There are limits even on free speech. You can't defame someone.

I have a proposal.


MASRI: Well, you know what? There is also a limit on gun violence to. There is also limit on police killing people. And that's what we're here for. SMERCONISH: Mr. Masri, I've got an idea for you.

MASRI: We're not here for anything what people got to say.

SMERCONISH: I have an idea for you, sir. Here's my --

MASRI: People are getting killed behind this. There's blood on the street, and you're worried about words. Come on, man!

SMERCONISH: I have an idea for you. My idea is --

MASRI: That's what journalists are missing right now. Why don't you go investigate something real? Why don't you go investigate something real?

I spoke my mind. I'm a citizen. Why don't you worry about us getting killed? The warrants, the extortion, the limits on the Constitution they put on us.

Do you worried about that, Michael? No, you're worried about what I said.

SMERCONISH: No, I'm worried about facts.

MASRI: I know about facts, too.


SMERCONISH: I listen to you. Let me finish my thought.

MASRI: And the facts have been skewered since day one.

SMERCONISH: Please let me finish my thought. My thought is as follows.

MARSI: Go ahead, bro. I'm listening to you. Go ahead.

SMERCONISH: Why not everybody catch their breath, allow this thing to run its course and then when all of the evidence that was evaluated --

MARSI: Really?

SMERCONISH: -- by the grand jurors get put on line and we can review hundreds, thousands of pages of factual evidence, then we catch our breath, evaluate what it says, and plan what our next moves will be? Doesn't that seem like the more prudent course?

MARSI: You know what? You can plan -- you can plan your own reaction however you want. You can't tell our community how we're going to react. You know what I'm saying?

This is our community. We're going to do what we feel.

Now, like I've been saying, we're going to be peaceful. We've been taking de-escalation courses. We've been getting training. You know what I'm saying? So, ain't going to be no violence. Y'all the one that are hyping this up and making it something that is

not, over a few statements that I said over a month and a half ago. Three minutes of me being out of line, y'all want to characterize me as some kind of demon. And that's on y'all. I don't really care. I'm living here.

SMERCONISH: Mr. Masri, what I'm saying, sir, what I'm saying is --


MASRI: People know what I'm about. People know what it's all about, too. So, you all can go ahead and skewer (ph) what you want to do --

SMERCONISH: I'm going to give you my final thought and then you give me yours.


SMERCONISH: There is more unknown in this case than there is known. I don't know how you could be rooting for an outcome when you don't know the evidence that was presented to the grand jury in this case.

Go ahead. You get the final word.

MASRI: I know this, I know this -- that Darren Wilson shot six extra times than he had to. He shots -- he is supposed to shoot to apprehend. We're supposed to have preservation of life in this country, not death.

Any time they get they shoot somebody and they kill them the first chance they get. That's not what law enforcement is supposed to do. They are supposed to protect and serve us, not to kill us.

So, all of that other stuff you're talking is irrelevant. People are dying. You are worried about words.

SMERCONISH: Let me tell you what's irrelevant. Irrelevant is the testimony of someone via a television camera who wanted their moment of fame.

I want to see the testimony of witnesses under oath in front of that grand jury. That's what I want to see and know the police officers account because we haven't even heard it. Anyway --

MASRI: Well, I can believe what I want to believe. I don't believe -- I don't care what any of them got to say. I know what happened. I know that --

SMERCONISH: You know what happened?

MASRI: -- Darren Wilson did not have to execute anybody. Darren Wilson did not have to execute anybody. He could have shot to apprehend. He didn't have to shot to kill. That's it.


SMERCONISH: OK, I don't know what happened. I don't know what happened. I want to read the evidence.

MASRI: That's a teenager and he was unarmed.

SMERCONISH: Thank you, sir.

MASRI: No, you ain't (ph) got to read the evidence. He was --

SMERCONISH: I don't have to read the evidence? OK.

MASRI: He was unarmed. His hands were up. Six extra shots. You tell me who's guilty.

SMERCONISH: Bassem Masri, thank you, sir.

MASRI: You tell me who's guilty.

SMERCONISH: I wish I didn't have to take a quick break but I do.

When we return, Bill Cosby as the victim's stories mount stories of sexual assault one journalist blames the media. She calls the coverage of this case a crucifixion. I've got some questions for her when we come back.


SMERCONISH: Bill Cosby's long and storied career appears to be imploding before our very eyes. Every day it seems another woman comes forward to accuse the comedic icon of rape and sexual assault, going back decades. Cosby himself has so far refused to address the allegations, but now, he's fighting back.

Last night in Florida, he got a standing ovation. And one of his lawyers came out swinging saying, "The new never before heard claims from women who have come forward in the past two weeks with unsubstantiated fantastical stories about they say happened 30, 40, even 50 years ago have escalated past the point of absurdity."

And Cosby is getting help. Kai El Zabar, executive editor of "The Chicago Defender", that's the city's African-American newspaper, wrote a piece titled, "Bill Cosby's Media Crucifixion". And she joins me now from Chicago.

Thank you for being here.

You also write in the piece that this is, quote, "careless communication", that creates a landscape for fraudulent slander. And that reminded me as a former civil litigator that Bill Crosby hasn't brought charges for slander. There is nothing that precludes him if these are untrue from filing a lawsuit against these accusers.

KAI EL ZABAR, EXECUTIVE EDITOR, THE CHICAGO DEFENDER: This is true. I think I also said in the article that he's retired and tired.

And I wasn't referring to him as being retired from the business of entertainment, but more so that he's just retired from the fight. He's 77 years old. Allegations were brought against him years ago. I think the first was

2005 by Andrea Constand who was then the women's coach at Temple. And at the time she charged him or the lawsuit stated that she had been drugged and groped. Women came out then, to join in that.

And it was determined by the investigative policemen that they had no evidence. And so, he settled out of court with her and it was dropped. When I say that it's fraudulent, I'm talking about being tried in the media. And so these allegations, not even charges, these allegations as his lawyer has stated lately, you know, are coming from everywhere. We all know that --

SMERCONISH: But, Ms. El Zabar, let me -- if I can just respond to it.


SMERCONISH: Because it's the use of the word "slander" that prompted my attention.

If I were practicing law again and he came to see me and he said this is all B.S. I'd want to know have you sustained damages, he has, Netflix pulled that gig and NBC shut down the prospective show.

So, if in fact there is a reckless disregard for the truth or knowledge of falsity because he is a public figure, he could be suing each of these women and shutting them down.

And I'm just making the point that he hasn't done that.

EL ZABAR: But what is he going to sue them for? What is he going to sue them for?

They don't have anything. I mean, if he wants to just sue to satisfy the public that as you have said that it is slanderous and that he wants to defend himself I think he's taking the position that he's not going to acknowledge it. He's not going to give it that dignity.

And who wants to go and dig up dead bodies. I mean, I think that's what it's like. I also think that you don't want to give credence to this media landscape that at best at this time is very pedestrian.

I mean, we don't control it anymore. Anybody who wants to state their opinion can. So, these women feel comfortable coming forth and saying these things.


SMERCONISH: But what could be in it for them? But, ma'am, what could be in it for them? Yesterday on CNN, I want --

EL ZABAR: What could be in it for them? I'll tell you. I'll tell what you could be in it for them.


EL ZABAR: People get reality TV shows to spin off of this. They get their 15 seconds of fame. They get to have interviews with you or whomever.

SMERCONISH: But I have to respond to that.


EL ZABAR: Maybe they think it's the money.

SMERCONISH: Yesterday, Alisyn Camerota here on CNN had an interview with the recent accuser.


SMERCONISH: And as doing the totality of the presentation felt obliged to say, here is a woman who has come forward and, by the way, she has a rap sheet. And I'm thinking to myself, there's no up side for that woman to say he did it to me, too, because she knows her life now becomes an open book.

That's why I asked the question what's the possible up side? It's too late for them to sue him.

EL ZABAR: This is true. I have no idea.

But I will tell you this, that it's not the first time that it's happened to celebrities. And people do things for many reasons. I am not at all upholding or trying to say that Bill Cosby is guilty or not guilty. I'm just saying that the public is not the place where we judge people.

We are not the court of law. It's an informal place. And we have laws if you are -- or have been an ex-attorney then you understand that we don't try people in the public. We just don't do it.

That's why we have laws to protect ourselves from this sort of things.

SMERCONISH: One other observation if I might quickly.

EL ZABAR: And I think it's unfair for us to do that. Sure.

SMERCONISH: In your piece you said Cosby went to court and was exonerated. As far as I know, he never went to court and was exonerated.

EL ZABAR: Well, he wasn't -- I shouldn't have used that terminology. When the settlement -- I mean, he was originally sued, they ended up settling out of court. So I should have stated that but I just took creative liberty to say that he was exonerated. So, I apologize for that.

But seriously, the point is, is that at that time when the other women came forth, they didn't have any evidence.

And here's my question to you, and to the public, period: all of these women were of age, why didn't -- just one go get a rape kit?

Repeatedly, it is said over and over again, that they were intimidated by Cosby's power. I have this to say about that. If you go, you get the rape -- you know, you have a rape kit, the DNA exposes who he is. We wouldn't be here today talking about that. I don't care how powerful he is he would have been brought down. Come on.


SMERCONISH: I interviewed one of these women just last week. I did say to here, why the next day didn't you call the police? Their answer, of course, is to say they were intimidated by him being in a position of power.

I wish we had more time. I thank you for being here.

Up next, the president decided to go it alone on immigration reform and he's taking heat from activists who say he's not doing enough, as well as Republicans who say he's gone too far. I'll get the scoop from a top GOP congressman on what his party intends to do about it.


SMERCONISH: Welcome back.

This week, President Obama told as many as 5 million undocumented immigrants, they could come out of shadows. It's the most sweeping every to limit deportations.

But there is no path to citizenship. Some immigrant activists think it doesn't go far enough. In Las Vegas on Friday, one of them heckled the president.



BARACK OBAMA, PRESIDENT OF THE UNITED STATES: That's right. Not everybody will qualify under this provision. That's the truth. And that's the truth.

That's why we're still going to have to pass a bill. That's why we're still going to have to pass a bill.


SMERCONISH: The order has Republicans fuming and but has also sparked confusion within the party, about how to fight back.

Joining me now is Republican Congressman Joe Baron from Texas.

Congressman, thanks for being here.

What of the president just said, why not pass a bill?

REP. JOE BARTON (R), TEXAS: Well, we should pass a bill. I don't think anybody in the Republican leadership in the House or Senate is opposed to passing the bill. What -- a bill. What we are opposed to is some of the things that the president has tried to do unilaterally in violation of the Constitution by this executive order, which goes way beyond anything that they are trying to call prosecutorial discretion.

SMERCONISH: So, instead of them focusing on process why not give him an alternative, especially when come January, Republicans will be in control of both the House and Senate?

Doesn't a more prudent path seem to be that the GOP pass as an alternative, makes it public and puts it on his desk, instead of just getting bogged down in fighting him over his executive order?

BARTON: Well, we haven't -- I haven't spoken to the Speaker John Boehner directly on this in the last day since the executive order came out.

But I talked to him recently about this. And I can assure you, that he and the incoming majority leader in the Senate, Mitch McConnell of Kentucky are discussing a wide range of options. One of which will be. And I would almost -- since I'm not a full committee chairman of the committee of jurisdiction, I can't guarantee it.

But I would -- I would bet money that we are going to begin to pass some bills to deal with the issue. The president just took action into his own hands, acted unconstitutionally. That's what we're upset about.

There are -- there are problems with what he's -- what he said, but there is a huge problem with what he did, acting independently, when he clearly doesn't have the legislative authority to do so.

SMERCONISH: Do you regard this as an impeachable event?

BARTON: Well, impeachment is indictment, and it's for high crimes and misdemeanors. I certainly believe the president is in violation of his constitutional authority, Article 1, Section 1 gives legislative authority to the Congress, not to the president.

But we have never -- we have impeached several presidents in the House. We have never convicted a president in the Senate. The president's only got two more years in his term. I would think it would be prudent to work to show the American people we can govern and not get bogged down in an impeachment process which just takes all the oxygen out of room. But I do think there are reasons if one wanted to pursue that path, you could consider it.

SMERCONISH: Congressman Barton, thank you for your time. We appreciate you being here, sir.

BARTON: Stay tuned.

SMERCONISH: I'll be back in just a moment.


SMERCONISH: Hey. Thanks so much for joining me.

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