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UV Rape Case a Hoax?; Eric Garner Case in Focus; Confronting a Fake Hero; Interview with U.S. Senator Bob Casey of Pennsylvania

Aired December 6, 2014 - 18:00   ET


MICHAEL SMERCONISH, CNN HOST: Hello and welcome to the program. I'm Michael Smerconish.

And once again, we're focusing on a black man dead at the hands of police. Today I've got some hard questions you may not have heard. Growing resentment among police officers, have they become the villains instead of the heroes?

As the country takes to the streets to say no more cops say their hands are tied as the crowds grow larger so does their anger. The cops ask a question, what are we supposed to do? If the terrible tale told by the choke hold tape wasn't enough for a grand jury, can it be enough for federal charges? I'm not sure we'll ever see this case get made, and I'll talk to one of the smartest judges, a former cop, about what it would take to get the feds to act.

Plus, stolen valor. The shocking video of a pretend war hero and the real hero who confronted him and then shared the story with millions, all that and a lot more. Let's get started.

Up first, a case of rape that may instead be a hoax. The University of Virginia has been rocked in recent weeks by an explosive article in "Rolling Stone" about a woman named Jackie who tells a terrible story of a gang rape at a fraternity party. So terrifying was the story that the university immediately suspended all fraternity activity and held crisis meetings to deal with the scandal and the fear that spread through the campus. The university has had a troubled history with reports of sexual assault, but this highly questionable account sparked a national conversation about how badly the school had handled the problem, and at least some of the harsh criticism it has received made have been unjust.

I interviewed the journalist who wrote the story on my radio program, her name is Sabrina Erdely. Listen to what she told me last week.


SMERCONISH: I'm gleaning from what you wrote and the intonation of your voice that you buy it, you believe it.

SABRINA ERDELY, JOURNALIST: Yes. I mean, at the end of the day you know, it is you know, I wasn't in that room. So I can't really know what happened. But everything about Jackie is entirely credible. I put her story through the wringer, I talked to all of her friends, all the people that she confided in along 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.


SMERCONISH: 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 Erik Wemple of "The Washington Post." He joins me now.

Erik, from a journalistic standpoint what was it that troubled you from the first time that you read the story in terms of what level of fact checking had taken place?

ERIK WEMPLE, "THE WASHINGTON POST": That's a great question, Michael. Thanks for having me on.

The thing that bothered me is something you find in the very best journalism, which is that a reproduceability standard. I found almost nothing in that story that I could hang onto or someone I could call or a document I could cite or an authority I could say go to and say is this true? There was nothing, very little in that that I could hang onto and if I chose to, basically confirm the story on my own terms.

"The Washington Post" today came out with a story saying that you know, this "Rolling Stone" - these "Rolling Stone" allegations look a little shaky. And they had to do an enormous amount of reporting to do that.

SMERCONISH: In your own blog, your own coverage of this issue, there was a particular paragraph that you wrote which questioned how hard the "Rolling Stone" journalist had worked to get the account of the alleged perpetrators on the record. I remember your language. You said something like use a fax, send an e-mail, send FedEx, use UPS, none of those means were done it seems.

WEMPLE: Well, 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 the agreement is such that you can't nail down the story by other means then you don't run the story.

SMERCONISH: I think it's also been acknowledged by the author of the "Rolling Stone" piece that she truly went looking for a story of sexual assault on an American campus.

WEMPLE: That's correct. She shopped around several campuses and she landed on UVA because it's a genteel, southern place and this is a good place to sort of work in her reporting about sexual assault on the campus. And clearly, you know, the thing about the story is that there are segments of that story that really do talk about serious problems.

There's another victim (site) who is named Stacy. She suffered a horrific, horrific assault. And the university according to the story did not handle it well. You know, that story isn't getting talked about much simply because the lead of the story was this gang rape that involved nine men. So, and that has eclipsed everything. It's a real, real tragedy that this investigation by "Rolling Stone" has been undone by their own incompetence and bias.

SMERCONISH: What I think I'm hearing you say, Erik, in part is that the reason perhaps that so many were so willing to buy into this narrative is because there have been real instances, that have taken place and consequently when we heard this we thought well, it seems to fit the pattern.

WEMPLE: Absolutely. And you know, and she cites statistics saying that rape is more common among fraternity pledges, she cites other statistics about UVA and indeed, the problem across the country is outrageous. And all of us who have daughters need to take heed of all of this because it is one of the country's biggest problems right now. These are places that should be protecting our children, and they are not.

SMERCONISH: 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 the fraternity, not protecting that whole culture, but just saying I think it's strange credulity to believe that seven guys, nine guys as a right of initiation would have brutally raped this woman behind closed doors while a party was going on.

Erik Wemple, thank you. Appreciate you reporting on this.

WEMPLE: Thank you for having me on.

SMERCONISH: Whether the "Rolling Stone" article is completely accurate or good journalism, 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. Victims are left to face them in classrooms and social situations.

My next guest is an author and groundbreaking feminist, Naomi Wolfe, co-founder of She says that women shouldn't hide or be stigmatized but should fight back by naming attackers and going to the police. Why do you think that?

NAOMI WOLF, FEMINIST AUTHOR AND POLITICAL ACTIVIST: Well, because it's a crime. I mean, rape is a crime just like any other form of assault. What we've got and I agree with the reporter who was on earlier, we've got right now is quite a ridiculous situation in which campuses exploit this feminists and the reasons for it were initially sensitive and are now backfiring, desire to protect the anonymity of victims at all costs. So what colleges are doing systematically and I've seen this across

the country, speaking at college campuses and in my own reporting is that they use the anonymity that victims are encouraged to want, as a way to avoid liability, to avoid transparency, to just like UVA did, hide any open reporting of sexual assault statistics and protect the he said she said smokiness around these sexual assault

SMERCONISH: Counter intuitive to me that you are this champion of feminist rights and you're here saying "hey, get out there in the open and take them on as opposed to protecting the anonymity of women who choose not to do so."

WOLF: Well, I've gotten like you I've gotten a lot of back lash and attack initially for what I've been saying for years which is that victims of sexual assault should come forward, name themselves, name the time, place and their perpetrator. I did that myself. I was sexually harassed before the crime existed by a professor, a famous professor at Yale and I kept silent for 20 years then reported out the story when I found out that there had been 20 years of cover-up using these exactly these technique of silencing victims, encouraging them to be anonymous.

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 yourself, be accountable, naming your perpetrator and letting a proper investigation take place and proper journalism, it does lead to these kinds of horrific situations.

SMERCONISH: Is the reality that if I'm a female and I'm carjack or I'm mugged or some other victimization of crime there is not a stigma that attaches to it. Unfortunately, if I'm raped, sexually assaulted at least I'm going to think I'll be perceived as damaged goods in a whole different way.

WOLF: Well, that's true but that's a very Victorian idea about those women and sexual assault. I would rather you know, our daughters got the message and our sons, they are 17 percent of victims of sexual assaults as well, these are huge numbers. I would rather our kids get the message that if you are raped or sexually harassed it's no more your shame than being mugged in an alleyway. The best way to shine a light, I mean - there's been a lot of (INAUDIBLE) let's look at assault of boys (INAUDIBLE) through the church.


WOLF: Yes. Thirty years later, men are coming forward to their credit and saying I was abused. This is the perpetrator. This is who I am. This is who he is. And it lets journalism do its work and it lets 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 to say one more thing which is colleges encourage victims not to go to the police. They have no right to do that.

SMERCONISH: But thinking they are helping them. WOLF: Well, saying they are helping - 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 in their (INAUDIBLE).

SMERCONISH: May I share a quick observation how men and women I think read "Rolling Stone" differently. Guys read it. And because they realized that a rape allegation against a man is so ruinous they tend to be skeptical. Maybe too broad of a generalization here. Women I think so fearful of the stigmatization of a rape victim tend to be overly sympathetic. There is this natural bias between men and women when we read a story like that which we're now talking about.

WOLF: Sure. Which is why proper reporting and sunlight is so important because then you find that in fact there's no greater instance of false rape reporting as there is a false reporting to any other crime. It's two percent. And there are all kinds of reasons that people file false rape reports or false mugging reports, false arson reports, false fraud reports, whatever, but I think the more sunlight is shed on these kinds of assaults. I 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 systematic.

I heard about cover-ups across the country, I've mentioned - you know, one in five young women, this is well documented is assaulted sexually on campus. And overwhelmingly there is not follow-up, there is cover- up. They have to face their abusers. This is really real. I do wish I have to say that we were saying 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 and I hope you have her on 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, those are the whole process. She's holding Columbia accountable for not doing due diligence.

SMERCONISH: I'm interested.


SMERCONISH: I worry if this is a hoax, it's a big seat back for real victims. I don't know what to believe.

WOLF: I agree with you. But that's why we need real reporting and real police investigations.

SMERCONISH: Agree with that.

WOLF: Yes.

SMERCONISH: Naomi Wolfe, 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 now do my job?


SMERCONISH: I can't breathe, I can't breathe. Those words rang out in the streets of New York City and across the country this week - words on the lips of thousands of angry protesters. The man who spoke those words with his last breath, Eric Garner who was selling cigarettes illegally on a Staten Island street corner when police arrested him. Brought him down and many believe killed him. This terrible video was disturbing to all of us including police officers. We talked to many 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 DeBlasio talked about how some people fear the very cops they look to for security.


MAYOR BILL DEBLASIO, NEW YORK CITY: So I've had to worry over the years, (INAUDIBLE) safe each night. There are so many families in this city who feel that each and every night. Is my child safe? And not just from some of the painful reality crime and violence in some of our neighborhoods but are they safe from the very people they want to have faith in as their protectors.


SMERCONISH: Now the thousands of people are taking to the streets each night. NYPD officers are standing down. Most of the time they are simply watching as protesters take over major thoroughfares and walk through traffic. The head of their union says the mayor is betraying his own police force.


PAT LYNCH: 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.


SMERCONISH: Many cops are wondering when did we stop being the good guys and become the villains? How do we react now when someone we need to arrest fights back? How far do we go? Are we now in danger? Joining me now to drill down on that question is Harry Houck, he is a retired NYPD detective. We can all agree something went terribly wrong in the Garner case.


SMERCONISH: So the question I now have though is because to get beyond the kumbaya and I'm not being dismissive of the good will that's out there but I'm not hearing specifics who has done what you have done for a living, what do you do the next time?

HOUCK: Exactly. What's going to happen here is that police officers are going to think twice maybe three times before they take action because of something like this has 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 are go around pointing fingers at the police officers and second guessing them, saying that they did something wrong when there is no evidence in the grand jury has said this, and the grand jury knows a lot more about this case than you and I do, and I've been working on this case for four days now. That the police officers acted properly in this case, but there are so many lies out there, all right, that are being spewed out there to the public, making the police officers look good and bad.

SMERCONISH: I noticed something, detective, different, though, I have to say about Garner and about the Tamir Rice case in Cleveland, the 10-year-old boy who was shot.

HOUCK: Right.

SMERCONISH: As compared to Trayvon Martin and the Ferguson case.

HOUCK: Right.

SMERCONISH: By day I'm a talk radio host. People call me from all across the country and they offer opinions. I could usually pick up the intonation of your voice, is it a white or an African-American. And know what you were going to say about these cases. Garner's different. Tamir Rice is different. Now, I'm getting whites and blacks who were saying something's terribly gone wrong here. It needs to get reined in. I want to go back to my question. If God forbid tomorrow you responded to a situation like that, you got a 6'4" guy, 360 pounds, what are you going to do?

HOUCK: Well, I'll tell you. I'm doing the same thing. I would. OK. But the police officers now out there, would they? I don't know. They are going to be sitting thinking maybe I should have a conversation with this guy. Listen. The longer you talk to somebody who you place under arrest, all right, the more of a chance there is of you getting injured.

There have been police officers killed in the line of duty for minor little things that you think well, you know, why are you bothering me. It's a minor thing. Why are you going after this guy because he is selling cigarettes? Because it's against the law. The police officers were out there. OK. 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 knows the drill. He had been arrested 30 times before for the same thing. He know what is he's got to go through. SMERCONISH: 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 if he stopped with the choke hold or whatever it was, the guy arguably would be alive.

HOUCK: I don't know that. You don't know that for sure. The fact that he had pre-existing conditions asthma, he had a heart condition. All right, we don't know that for a fact. That he would be alive. But the whole thing is that when somebody takes an aggressive stance saying you're not taking me, I'm not going to be taken under arrest anymore, as a police officer you need to respond to that because now it's an aggressive stance against me. I want to go home tonight.

SMERCONISH: Understand and I want you to go home. Quick, 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. Do you agree or disagree?

HOUCK: Are they blind? It works. It worked. Look what happened to the Giuliani administration with the (INAUDIBLE).

SMERCONISH: You think it's causally connected.

HOUCK: Listen, I cam - I was a cop, real quick, 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. It was insane.

SMERCONISH: Harry Houck, thank you. Appreciate your service.

We're going to take a break. When we come back as protesters scream for justice, we'll dig down on the hope that a federal prosecution will bring justice in the choke hold case. I think it's wishful thinking. I'll talk to a judge who has even a stronger take than I do. Be right back.


SMERCONISH: 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 is a federal case, it will have to be brought on civil rights grounds. I'm an attorney. I can tell you that's a big legal mountain to climb.

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. Judge Alex joins me from Chicago. Judge Alex, do you expect there will be federal charges brought on the Garner case?

ALEX FERRER, JUDGE: I would say it's likely. I would say the Garner case is very different from the case in Ferguson. I was surprised like you were that there wasn't an indictment filed because of what I saw on the video. Not to say that I thought the takedown was improper. I thought the take down was actually the appropriate police action on somebody who is 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 led to an indictment. Not necessarily a conviction down the road but the standard is much lower.

SMERCONISH: When you say you think that the take-down was proper, is that Alex Ferrer, the former cop speaking, is that Alex Ferred, the former judge speaking or a combination of both? In other words, do you have a different perspective when you're wearing your judicial hat versus your former cop hat?

FERRED: Yes. Every step I have taken in my career from police officer to lawyer to judge gives me a broader perspective on how the system works and the actions of police officers. So it's all of it. But realistically what people need to understand when a police officer tells you you're under arrest, your resisting is not going to get them to say "Oh, OK, 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 are placed under arrest.

So I always tell my kids, anybody, listen, even if you think the officer is wrong if he places you under arrest, submit. You can always sue them, 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 are trained and properly so to take to you the ground where you are less likely to be violent because you can't swing at them.

That's kind of why I believe in Tasers because any time you take somebody to the ground especially somebody who is 350 pounds and 6'3", there is a massive amount of force used and the likelihood for injury is much higher.

SMERCONISH: All right. You told me you that believe Eric Holder and 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.

FERRER: 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 much higher 18 federal civil rights case the standard that's applied is a reasonable officer standard. It's the actions of a police officer, because the courts recognize that police officers have to make decisions that we don't have to make, they don't necessarily know if the person who they are arresting is planning on being violent, they don't know if the person has a violent past, there's all kinds of circumstances.

So they apply a reasonable officer's standard. And the public generally likes to give the benefit of the doubt to the police officer even when the outcome is tragic. I don't believe for a second that this officer intended to kill or even seriously injure Mr. Garner. What I think is that he was using the force he thought necessary and he may have used excessive force, and it will certainly lead to a civil case. No question about that. SMERCONISH: Alex, will 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?

FERRER: There are separate federal statutes that apply to civil rights violations with a racial animus and those that are not with a racial animus. They 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 heard of to indicate either in the Ferguson case or the Garner case that this was motivated by race.

SMERCONISH: Let me offer a theory before we have to wrap up. What if the argument is that this was all a part, outgrowth of the broken windows police enforcement? The minor stuff we need to hit hard on or it grows into major stuff. And that the broken windows philosophy has a disproportionate impact on minorities consequently there is a racial element to going after someone like Mr. Garner in the way they did.

FERRER: 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 racially biased or violates an equal protection clause. But what we're talking about the specific mind-set of this officer, was he motivated primarily by race?

And I can tell you I would bet my life that if that was a 6'3", 350- pound white guy who they were going to arrest and 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.

SMERCONISH: Judge Alex Ferrer, thank you so much for being here.

Up next, America service men and women -- they have sacrificed and spilled their blood for our country. True heroes. But 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.


SMERCONISH: Welcome back.

So, 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? But there is nothing funny about this.

It happened outside of Philadelphia, a real military veteran spied a man he didn't think looked authentic, decided to confront him. He quickly deduced that this ranger was no ranger and no hero at all and he said so and he filmed the whole thing. So far, this has 3 million views.



UNIDENTIFIED MALE: He's calling a staff sergeant staff sergeant when he's wearing the rank of a staff sergeant. That makes no sense.

Here it is, guys, stolen valor at its finest. (EXPLETIVE DELETED) wearing United States army uniform -- you know that's illegal, right? What you're doing right now.

UNIDENTIFIED MALE: Let me tell you something. If I was phony --


UNIDENTIFIED MALE: -- then I wouldn't be wearing this.



UNIDENTIFIED MALE: Because you are phony. I just called you out about 10 different things. All of them are bull (EXPLETIVE DELETED).

This is illegal. What you're doing right now is illegal, because you know what, I've worn that uniform and I had friends get killed in Afghanistan wearing that (EXPLETIVE DELETED) uniform. No, you haven't and you are full of (EXPLETIVE DELETED).

Stolen valor. Right here. Stolen valor!


SMERCONISH: The man the name on the uniform is Shawn Yeatman (ph). He claimed that he received medals for his military service. It's called stolen valor.

To help me get to the bottom of this disturbing case I'm joined by the man responsible for what's known as the stolen valor act. Doug Sterner, he's a real historian and Vietnam combat veteran. He's also co-author of "Restoring Valor", and he joins us from Colorado Springs.

Douglas, 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?

DOUG STERNER, MILITARY HISTORIAN: Well, first of all, thank you for having me on today, Michael. It's good to be on TV with you for a change.

SMERCONISH: Thank you.

STERNER: But I want you to understand there's two types of stolen valor. One type of stolen valor when you put on a uniform or wear a medal, that has always been against the law. The Stolen Valor Act 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 too medals of honor hanging on his courtroom wall, couldn't be prosecuted because he wasn't wearing them.

The issue with Mr. Yeatman is he was wearing a Combat Infantryman's Badge, CIB, three awards, which is very, very rare, which is covered under Section 04. If, and this is the caveat with that redone bill which is really not very good, he did it with intent to obtain money, property or other tangible benefits.

SMERCONISH: So, for example, if at the mall there was a sale for veterans, if -- a hypothetical -- and he went and put on that uniform to take advantage of the sale, then arguably, he violated the law.

STERNER: He violated the Stolen Valor Act, Section 704, but even before that, let me take you back two more sections to Section 702 of the U.S. code, which says whoever without authority wears the uniform of any of the armed forces of the United States shall be fined under this title or imprisoned not more than six months or both. So, he may be in violation of Section 704, the Stolen Valor Act.

SMERCONISH: Doug, I want to ask you this.


SMERCONISH: 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.

STERNER: In the last 30 days, this is a very, very low level case in my order of priorities. We had three phony prisoners of war since Veterans Day.


STERNER: And that's the thing that people need to understand. And you know this better than most. You have been there with us all the way. I appreciate you.

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.

OK. So, he got a veteran's discount. That sounds harmless. Pam, my wife who wrote the bill, describes "Stolen Valor" as an iceberg criminal action.

What you see probably is the smallest part, and beneath it there is any level of criminal activity.

SMERCONISH: Understood. Doug Sterner, thank you so much for your real service. We appreciate it.

STERNER: Well, thank you, Michael. Good to be on with you.

SMERCONISH: Got to take a quick break.

When I come back, this question: what do elected officials think about the chokehold case and is there anything they can do about it? Senator Bob Casey is one of the good guys, and I'll ask him when I return.


SMERCONISH: 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 backdrop multiple federal investigations initiated by the Justice Department, just as Eric Holder is leaving office.

If confirmed, the Garner case will land on the desk of a new attorney general named Loretta Lynch, currently interestingly the U.S. attorney for the eastern district of New York.

There's lots of talk in the nation's capital about what can be done. I want to talk to one of the smart and thoughtful Senate members about how to deal with this. I have found him, in Pennsylvania Senior Senator Robert Casey.

Senator Casey, when you watch that video like the rest of America, what are you thinking?

SEN. ROBERT CASEY (D), PENNSYLVANIA: Michael, the video I think shocks the conscience. That's an old expression for something even if you are not a prosecutor, even a lawyer, what is depicted on that video should shock the conscience of anyone and lead to a lot of questions even in the absence of a determination of no charges being brought pursuant to the grand jury process.

So, it was horrific to hear someone say over and over he couldn't breathe I think should cause any one to be very concerned about what happened in that case, both procedurally and substantively.

SMERCONISH: Is there a federal response in order? For example, you've heard the criticism, Senator, that says that prosecutors, local prosecutors shouldn't be investigating local police. Might there be some federal role for that type of a scenario where in this 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?

CASEY: 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 that we've got to look at all of the evidence.

But just in the context of what was on that video which is -- you don't have to have a trained eye to be outraged by what you saw. In the context of that video and that decision, I would hope that there's a federal role to provide a measure of review that I think most Americans would expect in the interests of fairness and justice.

Beyond that, beyond this case, it remains to be seen what specific federal rule there is. I'm not a believer that every problem has a federal response. But I do think it's important that the president as he has already initiated, is having a conversation and wants to have a very in depth conversation about some of these issues, 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's basic tension or conflict.

SMERCONISH: Let me change gears and ask you about a different subject. You are laboring on something that might not get a lot of headlines but will impact many Americans' lives. Tell me about the ABLE Act.

CASEY: Michael, this is a very simple piece of legislation in one tense. What we're trying to do to help families that have a loved one with a disability is to do what we already did in the context of higher education. We encourage people to save for education and we incentivize it through the tax code. We do the same really for retirement. We haven't done that for disabilities.

So, this will allow families that have a loved one with a disability in some cases more than one disability, to be able to put money away in a tax advantaged manner and they can withdraw from that account when that individual who might at the age of 7 when people are putting money into her account, when she is 25 or 30, and in the work force, she'll be able to use that account to live her life and to hopefully to live a full and successful life.

So, we're just trying to provide the kind of opportunity for folks with disabilities that we have for folks saving for college.

SMERCONISH: Senator Casey, thank you.

CASEY: Thanks, Michael.

SMERCONISH: When we come back, allow me to make a closing argument about the death of Mike Brown in Ferguson and the differences that I see between that case and the death of Eric Garner in New York City.

I'll be right back.


SMERCONISH: Like many others I was shocked by the grand jury decision not to indict NYPD Officer Daniel Pantaleo in connection with the death of the Eric Garner. On the surface, it looked to me like a case of involuntary manslaughter.

Still, I'm going to read every bit of evidence 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 came to a just result.

You might remember a commentary that I delivery here three months ago on August 23rd. I drew a line down the center of my yellow legal tablet separating what we knew from what we didn't know, and then said I said this.


SMERCONISH: 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.


SMERCONISH: I didn't want to pass judgment until I 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 studied had 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 McCulloch was in a no-win position. Knowing he could not secure a conviction, McCulloch 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 testified for 90 minutes without once asserting 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 believes he had nothing to hide. His account was also consistent with his prior statements.

Third, eyewitness testimony both supported and contradicted Wilson's account. As detailed in an interactive compilation by "The Washington Post", some like Wilson saw brown charge. While others, they saw surrender.

But, fourth, even if the eye witness accounts are read to support an indictment, the physical evidence suggested otherwise. Paul Cassell, a criminal law professor at the S.J. Quinney 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 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 shoots, the medical examiner said the soot was indicative of gun firing just six to nine inches from Brown's hand.

Now, ask yourself, why would Brown's hand had been in such close proximity to the weapon absent a nefarious intention. Look, had there ban 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 actions to those of George Zimmerman. Many, including me, think that Zimmerman stalked Trayvon Martin while walking home at night, simply because he was block.

Is there anything to suggest that Wilson had similar motivation? Wilson had no complaint against his time in the force. Wilson was in the neighborhood responding to a stress 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 robbed cigarillos from a nearby convenient store, a description that matched Brown -- to my eye, there was no racial profiling, period.

And so, the death of 18-year-old, unarmed Mike Brown is a terrible tragedy. The process by which it was investigated wasn't perfect. But the result, warts and all, was just.

There is no doubt that police can give perfectly innocent young black men a tough time for no good reason. But this isn't the case to make that point. Eric Garner might be. I want to see all the evidence.

We'll be right back with a final thought.


SMERCONISH: Hey, 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.