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SMERCONISH

Race for 2016; Fight or Flight; Bill Cosby Saga: Should Judge Have Released Decade-Old Court Papers?; Quadriplegic Man Fired For Medical Marijuana Use. Aired 9-10a ET

Aired July 11, 2015 - 09:00   ET

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


(OPENING MUSIC - "SMERCONISH")

MICHAEL SMERCONISH, CNN HOST: I'm Michael Smerconish. We have a great program planned.

A computer image of this little girl found dead two weeks ago in Boston garnering millions of views. We'll take a look at the growing mystery of "Baby Doe".

Plus, a man is brutally murdered in broad daylight on a Metro train in D.C. as almost a dozen stood by and watched. Should they have done more to stop the killer?

And I'll give my take on Bill Cosby and those court documents released by a judge this week. I'm glad that Cosby has been outed, but I'm questioning the process.

But first, I want to drill down on what I consider to be the biggest story of the week - the impact that one man is having on the 2016 cycle. And that man is Donald Trump.

Last night, he stood with families whose loved ones were killed by illegal immigrants.

(BEGIN VIDEO CLIP)

DONALD TRUMP, (R) PRESIDENTIAL CANDIDATE: The folks were telling me something that was incredible. Whenever somebody hears that it was an illegal that was involved with the death of their children, it becomes politically incorrect for a politician to help them. That's how messed-up our nation is.

(END VIDEO CLIP)

SMERCONISH: The reality is that the outcome of the 2016 election is being determined right now. And by the remarks of Mr. Trump, how his fellow Republican candidates react to Trump's more incendiary comments will establish the GOP brand that lingers long after Trump has left the debate stage.

Forget the sound bytes, crunch the data. Demographics are not on the side of the GOP. The Party is older, whiter, and male at a time when the nation is changing. Consider that just this week, demographers confirmed that Latinos

outnumber whites in California. In 2016, the Republican candidate cannot win without increasing the share of the non-white vote that was received by both Mitt Romney and John McCain in the most recent presidential elections.

How can Mr. Trump possibly do that? His views may enliven the base but they're not a growth strategy for the GOP.

Yesterday, I asked my radio audience if they thought that Trump's comments were resonating and one caller had an interesting observation.

(BEGIN AUDIO CLIP)

UNIDENTIFIED CALLER: I think that this is just a case of the chickens coming home to roost. Trump is becoming a more accurate mirror of the Republican base and I, as a moderate Republican, can get frustrated with that because I think that it's something that the Republican Party has fed and it's fed increasingly over the last few years. They have tried to benefit from it. You can't live in a talk radio, Facebook, bumper sticker-type world and take advantage of that to attack Democratic candidates and then complain when a Republican candidate for president uses the same strategies and the same arguments and the same issues to attack other Republicans.

(END AUDIO CLIP)

SMERCONISH: For my other callers, the opinions on Trump were mixed.

Now, while his competitors for the GOP nomination are loathe to confront him for fear of offending the Party base, if they don't do so, they run the risk of winning a nomination while alienating independents whom Gallup reports now comprise 43 percent of the country.

Of course, there's another concern for the Grand Old Party. If they push Trump too far, he could run as a third-party candidate and do to Jeb Bush what Ross Perot did to George Herbert Walker Bush in 1992 - siphon off his votes, which gives the Donald the ultimate trump card.

Here to respond, representing Mr. Trump is Michael Cohen. He's the executive vice president of the Trump Organization and special counsel to Donald Trump.

Michael, thank you for being here. You heard my critique. The floor is yours to respond. I hope you'll tell me how you think Donald Trump can grow the GOP tent.

MICHAEL COHEN EVP TRUMP ORGANIZATION AND SPECIAL COUNSEL TO DONALD TRUMP: Well, Donald Trump is a force in and of himself. Donald Trump is not somebody who's going to kowtow to anyone. He's - right now - leading the polls and if he's not leading the poll in a specific state then in all fairness, he's number two. So one thing for sure, he's going to be on the stage for the debates and he's going to have his voice heard. SMERCONISH: The case that has given prominence to the illegal immigration issue, of course, is this horrific murder of Kate Steinle in San Francisco about 10 days ago and I agree with Mr. Trump that the fact that the man who apparently killed her - allegedly murdered her - was able to break into the United States - I think the number is five times - is proof of our problem with poorest conditions at the border. But here's the issue. The way in which Donald Trump has approached this is to - is to distort some of the facts.

[09:05:01]

The Washington Post this week - in looking at his public statements gave him four Pinocchios. So how is he going to win the non-white vote if you've got fact-checkers out there saying "He's just not telling it straight"?

COHEN: Well, he is telling it straight and Donald Trump speaks from the heart and - which is something very different than any of the other politicians do. What they do is they go ahead and they have polls in order to see with whatever they're going to say is going to poll well and then they create a speech based upon that and that's not going to help the Party. It's not going to help this country. All Donald Trump wants to do is make this country great again. He wants to put people back to work. He wants to bring companies that find it economically beneficial to leave this country to come back. This country needs to grow its economy.

And I'm going to tell you, Mike, that the interesting thing is when you say, "How is Donald Trump going to rebrand the GOP and create a relationship with Latinos?" First, there's two parts to that. The first is what Donald Trump said in his speech was not directed to Mexicans. That's a gross distortion by the press - by the liberal media - that wants to take Donald Trump out of this race. He did not say "Mexicans" and he certainly did not say "Latinos". He said, "Mexico", and he was referring to the Mexican government. What he then did is on probably more than 10,000 speeches and meetings with both liberal media as well as print and television, he went ahead and he explained exactly what he meant - that it's the Mexican government, not Mexicans. That wasn't enough...

SMERCONISH: I understand that. No, I...

COHEN: --so he put out statements. Let me - let me just finish this. So he put out statements that explained it. But they still don't want to hear it. And so Donald Trump is not backing down. He doesn't back down to anyone.

SMERCONISH: But, Michael, Michael, I know and I want to get to that too. I don't consider myself part of any liberal media. I just want to get to the facts and the facts suggest that proportionately, those who are here in this country illegally are committing less crime than native-born Americans and that's what the Washington Post was getting at when they called out Mr. Trump and they said this just isn't true.

COHEN: Well, tell that to the family of this young girl that was killed. The bottom line is this is not an issue about one person though, in all fairness, if you look to see the tragedy that took place in Charlotte, what a great result that that had for Charlotte and the American people and let's hope that the same thing happens for this beautiful young girl that was killed in San Francisco. This is a time for immigration reform and that's something Mr. Trump feels strongly about.

SMERCONISH: You referenced the liberal media. Last night in California, Mr. Trump took his own shot at the media. Let's all watch.

(BEGIN VIDEO CLIP)

TRUMP: Now, the problem is you'll cut the statement in half, you'll cut it down 'til you leave out (inaudible) what I said which you always do because the press in many cases is very, very dishonest.

(END VIDEO CLIP)

SMERCONISH: Michael, is he too thin-skinned to be president? He lets no...

COHEN: He's not - he's not thin-skinned.

SMERCONISH: --he lets no criticism go unpunished. I have to tell you, a year ago when I started at CNN and I made passing reference to him, he quickly tweeted out and told Jeff Zucker, my boss, they were wasting money on me. I mean, is that the kind of guy who's got a temperament? Can he take the critique while he's in office?

COHEN: Donald Trump does not have thin skin. What Donald Trump does is he doesn't let people attack him without being attacked back. That's just his nature. That's what's made him the success that he is.

SMERCONISH: Well, I think there's a difference between being attacked and just offering criticism that's fact-based. You're the executive vice president of the Trump Organization. Have you calculated the hit to this brand that all of these business ties that have been cut by sponsors have generated?

COHEN: In comparison to his net worth which is an excess of $8 billion, it's small potatoes to Donald Trump. The bottom line is his goal is to make America great again and he's willing to sacrifice these dollars that these spineless sponsors decide to walk away from Mr. Trump. They'll all be back down the road when he ends up taking the White House.

SMERCONISH: RNC chair Reince Priebus called Mr. Trump this week to ask him to tone it down. My understanding is that you facilitated that call and that you listened in. Did Donald Trump respond to Reince Priebus' plea and say that he would take it down?

COHEN: Well, I'm not so sure that that's accurate. Yes, Chairman Priebus...

SMERCONISH: Well, tell me what happened. What was said? COHEN: --well, Chairman Priebus did call my office. I then connected him in to Mr. Trump and I was privy to the conversation. As counsel to Mr. Trump, it's a little bit difficult because it's a conversation between my client as well as the chairman so I want to be tread very lightly on that.

[09:10:05]

It was not a - it was not a request for Mr. Trump to tone anything down. It was more a congratulatory phone call as Mr. Trump is now leading the polls. He did, however, say that the GOP is actively seeking to create a better relationship with the Latino community and that he should just take that into consideration. Mr. Trump said, "Listen, I'm going to be me because that's the only thing I know how to be. I'm not one of these phony politicians that in all fairness are the ones that got us into the trouble that we're in."

SMERCONISH: OK. I'm hearing from you - I think - that Donald Trump, as a result of that phone call, plans no change in his approach to going after the nomination.

COHEN: Listen, Donald Trump has a great relationship with Latinos. This is all being fostered by groups that want to create something for themselves. Eventually, he's going to have the Latino community voting for him as well because the people who are most hurt by illegal immigration happen to be legal immigrants. And it's not that he's against immigration - his father - grandfather came from Germany, his first wife from Czech, his current wife from Slovenia. He is not anti-immigrant. Donald Trump wants immigration. It's what created this country to be the wonderful country that we are. What he does want is legal immigration because it's just better for the economy. It's better for the country. It gives these people the opportunity to create the American dream for themselves.

SMERCONISH: Has he categorically ruled out running for president as a third-party candidate?

COHEN: Why would he even think about it at the moment? He's the frontrunner of the GOP. Now, as you said in your earlier statement...

SMERCONISH: Well, I have to say - I've let - wait. I've let that pass - I think - three times. I'm unaware of any poll that shows him the frontrunner. I know that he's doing well in New Hampshire and Iowa but the national surveys that I've seen put him somewhere at about the seventh position - by the way, not bad. He's in the top 10. But which poll is he leading?

COHEN: Well, take a look at - just, for example - the one that came on Thursday. The Economist has him leading in the national poll.

SMERCONISH: I'm going to look it up.

Michael Cohen, I'm appreciative that you would be here. Next time, send your boss.

COHEN: It's a pleasure. I sure will. Right now, he's busy on the trail.

SMERCONISH: I understand.

Next, Governor George Pataki who - unlike other GOP hopefuls - hasn't been afraid to call out Trump on his brash remarks.

Governor Pataki is joining me now.

Governor, you were the first of the Republican candidates to condemn Donald Trump for those incendiary comments that he made about Mexicans and yet, since then, he seems to have gained traction? Why?

GOV. GEORGE PATAKI, (R) PRESIDENTIAL CANDIDATE: Obviously, he's gotten enormous press out of this and there is a sense of frustration about two things - illegal immigration and we do have to control the border and the fact that so many illegals who have been - who have committed crimes have been released from detention. Last year alone, the Obama administration had released over 30,000 illegal immigrants who had been charged with crimes. So there is enormous frustration over those elements. I don't think it's because of his attack on Mexicans. I think it's because a great many Americans want us to seal the border and to deal aggressively with criminal illegal aliens and I do too, by the way, Michael.

SMERCONISH: You've confronted Donald Trump. Do you think that Jeb Bush will rue the day that he did not do so to the extent that George Pataki has?

PATAKI: Michael, you guys are the political experts. I don't know who's going to rue what day. I was never looking for a fight with Donald Trump but I am going to always stand up and defend people who I think have been wrongly attacked. And in this case, Mexicans.

SMERCONISH: Governor, let me show you what another of your competitors said. This is Senator Ted Cruz embracing Donald Trump.

(BEGIN VIDEO CLIP)

SEN. TED CRUZ: Well, I am proud to stand with Donald Trump. I like him and respect him. And let me point out, there's a reason why so many Republican 2016 candidates are attacking Trump - because they haven't been speaking out on the need to secure the border. Many of those 2016 candidates have been vocal advocates of amnesty which only increases illegal immigration. I think we need to stand with the working men and women. I think we need to stand with legal immigrants.

(END VIDEO CLIP)

SMERCONISH: Governor Pataki, react to what you heard and tell me please, are you for a path to citizenship for the estimated 11 million who are here illegally?

PATAKI: I am for a path to legal status as a resident of America and I've outlined that and I've outlined it for some time. And I - and I - like so many of fellow Republican running-mates - have called for controlling the border and sealing the border and outlined detail plans as to what we would do.

[09:15:03]

So I just - it's easy to avoid the fact that it was a direct attack on Mexicans. I saw it that way. I heard it that way. I believe it was meant that way. And that's the part that I reject completely.

SMERCONISH: Less than a month from now, Republican candidates will gather on a debate stage in Cleveland Ohio. Potentially, yourself, John Kasich among others, Lindsey Graham might not be on the primetime stage. When I asked you about this before, you said the rules are what the rules are and you'll play by them. Are you nevertheless frustrated about the way this is shaping up?

PATAKI: Well, sure, I am. I believe I have a lot to say about the future of America, a lot of ideas as to how we can bring Americans together and have a better future for not just Republicans or Democrats but all of us standing together and I'd love to be on that stage. But I ran as - for governor as a Republican (inaudible), the rules weren't very fair then but I won. If the rules don't allow me on, I'm not going to fight to change them. I'm going to fight for the future of America and do my best to get my vision and my message out to the people.

SMERCONISH: Do you worry about Donald Trump running as a third party candidate, taking votes from a Republican ally? Ross Perot and George Herbert Walker Bush - I think the cycle was '92?

PATAKI: Yes. No, I don't worry about that. I mean, as I said, I had third party candidates when I ran for governor. I had three million more Democrats. Whatever the circumstances are, if you believe in your ability to lead, if you believe in the American people and your vision as to how you can empower the people and reduce the power of the politicians, you don't worry about what the rules are, who's running for what. You're running for - you worry about your message, your (inaudible), your ability to inspire the American people. And I know I can do that, Michael.

SMERCONISH: Governor Pataki, thank you so much.

Coming up, one week ago today, a man was brutally murdered in broad daylight on a D.C. commuter train with nearly a dozen people watching. Why didn't anyone step in to save him? We'll explore the so-called bystander effect.

And this week, we learned of a stunning admission of wrongdoing by Bill Cosby while he was under oath. But was the judge's decision to release Cosby's decade-old transcript on account of Cosby's moral crusading the right one legally? We'll debate it.

(COMMERCIAL BREAK)

[09:20:01]

SMERCONISH: Welcome back.

What would you do if you saw someone being brutally murdered on a commuter train? Would you step in?

Not one of the nearly dozen witnesses on the Red Line Metro car in Washington D.C. at one in the afternoon on July 4th confronted the guy who was killing 24-year-old Kevin Sutherland. No one stepped in as he was being punched, stabbed 30 to 40 times, stomped and repeatedly kicked in the head. Nobody.

Should those passengers have done more? Would you?

I want to explore the psychology of the so-called "bystander effect".

Joining me now is psychiatrist Dr. Gail Saltz.

Does lack of intervention equal cowardice?

DR. GAIL SALTZ, PSYCHIATRIST: No. What people have to understand is there is a social, psychological phenomenon called "diffusion of responsibility" and multiple studies have shown that when you are in a group, you are much, much less likely to take any action in an emergency situation because you believe that either other people will, people related to the victim will, or other people aren't, you shouldn't, you feel embarrassment at stepping out of the group. All of these sort of subtle, immediate social factors impede your ability in a way. It's not apathy. It's not cowardice. And in fact, actually, the studies show if you're alone, you're 85 percent likely to step in an emergency. If you are in four or more of a group, you are 31 percent likely.

SMERCONISH: OK. So it's group think - in lay terms that I can understand. What if one person among the 10 to 12 witnessed it decided he or she would get involved? Would the others then follow?

SALTZ: Then acted? It is - if one person does, if it affects the group and then others are more likely to step in. Yes. That one person taking action will basically increase the likelihood that the bystanders will react to that socially and also step in.

SMERCONISH: Is it the way in which we're wired? Is there something that we have innate as to whether we would or would not get involved?

SALTZ: It's also referred to as "herd mentality" and there's probably an evolutionary reason why we tend to work with the group and we impose social situations like stepping into an emergency, it can help if someone does but it also - it can also cause us to do negative things. You've seen this at sporting events where sort of the mob...

SMERCONISH: Right. Mob mentality.

SALTZ: --again diffuses responsibility and feels "Well, it's not really me doing it. I'm not really responsible for the group" so they're more likely to do something wrong.

SMERCONISH: This is a touch point in the blogosphere - a lot of criticism of the people who were not involved. And I want to show you something. This is from The Federalist. John Daniel Davidson wrote it - if we could put it up on the screen. He makes a comparison. Tell me if this is fair. "Morally, the choice facing the passengers on that subway car on July 4 was no different than the one facing the United 93 passengers on 9/11. It doesn't matter if it's one life or one thousand."

Fair?

SALTZ: Not really because in an emergency situation, there's also the social immediate assessment of the danger to you versus the reward to you. So when a group has time - as they did on that flight - to think about what was happening and to organize as a group, over time, somewhat that social factor is diminished, right, because now you're having a conversation. As you brought up earlier, one person saying "We need to do something" affects the rest of the group whereas in the immediate moment, the knife-wielding person is an immediate threat to yourself and you might say, "I don't know that victim" and therefore you are less likely to do something. I don't think they're exactly comparable.

SMERCONISH: OK. You referenced the victim. I want to ask about gender. What if the victim in this case had been female? Do you think that the response from the group would have been different than it was?

SALTZ: It's hard to say but for people who - for instance - psychologically have had some past experience where that would motivate them, perhaps, let's say someone standing in that crowd had a mother who was domestically abused by her father and that made them feel like "I have to step in. I identify with this situation and I did as a kid step in" - that might have motivated the group to do something different.

[09:25:16]

It would depend on the psychological make-up somewhat of the constellation of the group.

SMERCONISH: Does it go without saying that if the victim had been a loved one - it's your spouse, it's your child - then everything you've just told me goes out the window...

SALTZ: Yes.

SMERCONISH: --game on.

SALTZ: You are much more - of course, the person - and that's actually the expectation of the group. "Oh, someone who is related somehow to this victim will (inaudible) step in"...

SMERCONISH: Is going to get involved.

SALTZ: And actually, that is true.

SMERCONISH: I did this on the radio yesterday and I pointed out that the perpetrator in this case, I think, was like 5'5", 150. Not a big guy. And I'm the first to say I hope I get involved but I have no idea if I would get involved. I don't think you'd know until you were confronted with the circumstances.

SALTZ: I think that's exactly right. I think what people who are writing in and saying things and even thinking and I think they really believe it - just can't know because of the social psychological phenomenon that just goes against what you would think what happened but has repeatedly been shown in studies just to be the case. The fact that this was a 5'5" man is really meaningless. He had a knife and people understand what a weapon can do.

SMERCONISH: And apparently, all drugged-up and obviously prepared to (inaudible).

SALTZ: And let me also say, 30 to 40 stab wounds is not a person who is making a calculated "I robbed someone. I took them out. I tried to leave." This is someone who seemed completely out-of-control and that would add a fear or panic factor which, by the way, causes many people to freeze which is another psychological issue.

SMERCONISH: My final word, you and I just spent more time discussing this than it actually took to transpire. So in three minutes, it was over.

SALTZ: These are instant things - instant connections, very primitive responses, social-like psychological responses that people cannot assess later. They simply cannot.

SMERCONISH: Dr. Saltz, thank you as always. We really appreciate your work.

SALTZ: My pleasure.

SMERCONISH: Coming up, Bill Cosby's stunning admission revealed in decade-old court papers. Was the judge right to out Cosby and release those documents? I've got some concerns. I'll debate that with civil rights attorney Areva Martin.

And by now, you've probably seen this face - the computer image of "Baby Doe". Her body found two weeks ago on the shoreline of Boston harbor. Police are asking the public for help trying to identify her. We'll have the latest on that investigation.

(COMMERCIAL BREAK)

[09:31:35] SMERCONISH: Welcome back.

This week, we heard about the bombshell admission from comedian Bill Cosby. In newly unsealed court documents dating back 10 years, Cosby says he obtained sedatives with the intent of giving them to women with whom he wanted to sleep with. It was his own public stance as a moral crusader that helped tip the scale for a judge to release those documents.

The judge cited Cosby's 2004 pound cake speech in which the comedian lambasted some African-Americans for what he considered bad parenting, a lack of personal responsibility, and inexplicable crime.

Take a listen to a part of that speech.

(BEGIN AUDIO CLIP)

BILL COSBY, COMEDIAN: Where were you when he was 18 and how come you don't know he had a pistol? These are not -- these are not political criminals. These are people going around stealing a Coca-Cola. People getting shot in the back of the head over a piece of pound cake. And then we all run out and we're outraged. Oh, the cops shouldn't have shot him. What the hell was he doing with the pound cake in his hand?

(END AUDIO CLIP)

SMERCONISH: In other words, the judge didn't take kindly to Cosby telling others how to live their lives, while his own life was so apparently predatory.

Had Cosby just stop to comedy, his secret admission from a decade-old deposition might have remained hidden.

Look, I'm glad that Cosby was outed and that his accusers have been validated, but I question the legal decision that caused the release of that information which had been sealed.

Joining me now is civil rights attorney and legal affairs commentator Areva Martin.

Areva, we both read the 25-page opinion. Give me your take.

AREVA MARTIN, CIVIL RIGHTS ATTORNEY: I think the judge got it right, Michael. I think the judge is absolutely correct that Cosby couldn't have it both ways. He enter the public foray, he put himself into this role as moralist. He went on this tour lambasting African- Americans for almost everything, really for being poor in many cases.

So, he made himself a public figure. Now, you have a public figure with issues that the public has a great interest in it. So, there was no compelling reason to keep this information secret. So, I think the judge did the right thing.

SMERCONISH: I'm worried about where that logic might extend.

Let me show you and everyone at home a part of the opinion that I find to be most illustrative of my point. The judge wrote this, "This case, however, is not about a defendant's status as a public person by virtue of the exercise of his trade, as a televised or comedic personality. Rather, defendant has donned the mantle of public moralist and mounted the proverbial electronic or print soap box to volunteer his views on child rearing, family life, education and crime."

What does that, Areva, have to do with the facts of these other cases now, where women apparently with this validation are accusing him of sexual improprieties? What does it matter about what Cosby has said about parenting in the African-American community? MARTIN: It matters the platform. The platform that Cosby was given,

the platform that he used to interject himself into this larger discussion about African-Americans and their lifestyles.

And I think one thing, Michael, you have to talk about -- you haven't told the other side of this story. What was the compelling reason that Cosby's lawyers made.

[09:35:02] They said, look, judge, this information is going to embarrass Bill Cosby. That's not a compelling legal reason not to make this information public. And my understanding is, in this jurisdiction, if the information -- if there's a request for that information after two years, the party whose opposing it has to come forward with a compelling reason not to disclose the information.

And I will be embarrassed? You know that's not a valid legal argument for a judge to not disclose information.

SMERCONISH: Well, this happens to be the jurisdiction in which I have practiced, and by the way, this judge is a terrific judge by all accounts. I'm just as an attorney troubled by the precedent that has been set here, because it says to me -- well, what if you have a priest, what if you have a rabbi, what if you have a television commentator who is making pronouncements about the way in which people should lead their lives. All of a sudden, there's something they have in their closet.

This seems to give rise to the possibility that they get outed, even if it's not an apples to apples comparison.

And, by the way, let me just underscore, I'm thrilled that Cosby has been outed in this case, for the benefit of those two dozen women.

MARTIN: But I don't think you can get away from the public nature of what he did. And anyone that this thrust themselves into the public limelight -- whether it's a political candidate, whether it is a commentator on social issues, that is a part of that job. It comes with the territory, and once you do that, you then can't say, well, wait a minute, legal system, I'm a private person and I want my affairs to be kept private.

So, you accept the responsibility that comes with that, and that's the price you pay once you become a public figure. The judge was very clear, Bill Cosby, because you're a comedian, there's a distinction that he made, and I think that's a clear distinction that we have to give the judge a lot of credit for. I think that was a right decision.

SMERCONISH: I'm not going to win you over, but I'm going to take one more shot at it, you ready?

Bill Cosby, in this case, paid -- he paid money to make this case go away and part and parcel as you know of the conventional settlement, is that these sort of documents would remain private.

And now, here comes the judge saying, well, you gave that interview to Don Lemon, that was something cited in one of the footnotes, you gave that interview to Don Lemon and talked about the African-American community needing in some respects to clean up its act. Therefore, I think I'm going to release this information about the sexual improprieties -- to me, it's a disconnect.

MARTIN: Michael, what about the judge -- the judge gave Cosby an opportunity. It's not as if the judge went in and said, look, you know, you gave these interviews, I don't like this conduct that you were engaged in, so I'm going to disclose this information.

He said, Cosby, come forward and give me a legal reason, give me a compelling legal reason why this information should not be disclosed. And the best reason that Cosby's fantastic highly paid legal team could come up with is that it would be embarrassing, that's not a compelling legal reason, given the public's right, the public's interest in this information about drugs, about sex, about rape, about sexual assault.

So, you know, I think had the team, the Cosby team, given the judge more to work with, we may have seen a different outcome.

SMERCONISH: All right. I did say three times, I'm happy we know this information, didn't I? Areva, thank you.

MARTIN: You said that.

SMERCONISH: All right. Areva Martin.

Millions have now seen her face, but nobody has come forward to claim Baby Doe. Now, new details in the investigation.

Also, a quadriplegic man fired from his job for using medical marijuana. Now, he's fighting to convince lawmakers to protect his medical needs, you'll want to hear this story.

(COMMERCIAL BREAK)

[09:41:20] SMERCONISH: Welcome back.

There's growing mystery about the identity of a missing girl whose body was found two weeks ago on the shoreline in Boston harbor. This computer generated image of so-called Baby Doe has generated a lot of views but has provided very few clues for authorities to go on. Now, police are appealing to those closest to the little girl to come forward and put a name to this face.

CNN's Randi Kaye has been working the story.

(BEGIN VIDEOTAPE)

RANDI KAYE, CNN CORRESPONDENT (voice-over): Boston harbor's rocky shoreline where this little girl's body was first spotted. A woman walking her dog noticed a plastic bundle and called police.

(on camera): Investigators found the child's body here wrapped in a black plastic garbage bag just discarded like a piece of trash resting along the rocks here. This is Deer Island. It's just east of Boston's Logan Airport there. You can get here by car or by boat.

(voice-over): Authorities don't have a clue who the child is, so they are calling her simply Baby Doe. They also don't know who put her here or when.

But they suspect she hadn't been dead very long. A makeshift memorial with Teddy bears now sits by the shore.

(on camera): How disturbed are you by this discovery here?

ANTHONY PLANT, WINTHROP RESIDENT: Absolutely disturbed. You know, it's just a little kid. Never had a chance in this world, you know? It's terrible.

KAYE: The National Center for Missing and Exploited Children generated this computer image of what she may look like -- long brown hair, sweet chubby cheeks and big brown eyes -- heartbreaking and haunting.

(on camera): Whoever left her here may have done so after dark to avoid being seen. Deer Island is a busy place. It's a popular spot for biking, for jogging and even for fishing. And there's also a big water treatment facility right here with a lot of people going in and out.

DOROTHY DIXON, WINTHROP RESIDENT: I grew up here. And what if it's a kidnapped kid, you know what I mean?

KAYE (voice-over): Baby Doe is just 3 1/2 feet tall weighing 30 pounds. Investigators believe she's 4 years old, likely Hispanic or Caucasian. In this computer image, she's wearing small gold earrings so someone took the time to get her ears pierced.

Authorities don't have much to go on, but they did release pictures of some of the evidence. A zebra blanket found with her and polka dot leggings she was wearing. They hope it will jog someone's memory.

This photo along the path near the shore may help someone remember, too.

ANGELO UMBRIANNA, WINTHROP RESIDENT: The sad part is that somebody has to know this child but nobody's come forward. That's the sad part about it.

KAYE: Authorities were looking to see if baby doe might be one of a handle of high-profile girls missing elsewhere, but so far those from West Virginia, Florida, Maine and Mexico have all been ruled out. On the state police Facebook page, the little girl's image has been viewed more than 51 million times. But still, her name remains a mystery, along with how she died. No visible signs of trauma on her body.

Randi Kaye, CNN, Winthrop, Massachusetts.

(END VIDEOTAPE) SMERCONISH: Coming up, you'll meet a disabled Colorado man fired for medical marijuana use despite its legality. Can employers still fire employees for smoking pot even in states where it's legal? He took his case to the Colorado Supreme Court and I'm about to tell you what happened.

(COMMERCIAL BREAK)

[09:49:09] SMERCONISH: Welcome back.

Brandon Coats has been a quadriplegic since he was in a car accident when he was 16 years old. Since 2007, he's worked for satellite TV provider Dish Network. His bosses, they considered him a model employee. In 2009, Coats obtained a Colorado state issued license to use medical marijuana after work to help control his muscle spasms.

A year later, he was drug-tested at work and he tested positive for marijuana, even though Coats disclosed his marijuana use to his employer. He also explained the need -- but nevertheless was fired.

Coats sued his former employer and he lost. Although Colorado law permits the use of medical marijuana, pot remains illegal under federal law. And so, the Colorado Supreme Court recently found that Dish Network, a national employer with a zero tolerance drug policy, acted legally when it fired Brandon.

[09:50:01] Brandon Coats is joining me now.

Brandon, do you think that smoking pot made you a better employee?

BRANDON COATS, FIRED OVER USE OF MARIJUANA: I would say that it definitely made me a better employee.

SMERCONISH: How come?

COATS: If I don't smoke marijuana -- if I don't smoke marijuana, I get like debilitating muscle spasms. I'm a C4, C5 quadriplegic, so the messages between my lower body and my brain, you know, they don't -- they don't get sent through.

So, when my body sends a message to my brain, it gets sent back and makes my muscles spasm intensely. It's like the muscles flex as hard as they can. The thing is, is that, it's just doesn't stop after that. It goes on and on and on if I didn't smoke marijuana. I would be spasming 24 hours a day, you know, seven days a week, and I wouldn't be able to work because I wouldn't be able to sit down a desk still, and it makes me sick, I get nauseous, I get hot.

So, I don't think that, you know, it makes it so I can't work. It makes it so it enhances my ability to work.

SMERCONISH: But it would have made it much more difficult for you to carry out your job responsibilities at Dish if you couldn't smoke pot. And again, I want to underscore, on your own time.

COATS: That's correct. You know, I never used at work. I was never intoxicated at work. I did it in the evening on my own time. You know, I'd smoke some marijuana, I'd be intoxicated for maybe 20, 30 minutes. It was gone after that.

You know, I'd wake up the next day, I'd go to work, you know, perfectly sober, and I was never intoxicated at work. My -- I was always getting 100 percent QAs, good job reviews. I have never had bad ones. Never a write-up, nothing like that.

SMERCONISH: And fair to say that you played by the state rules. You did everything by the book, you had the card. You were registered. And, in fact, when Dish came to you and said, here is a random drug test, you said, I'm not going to pass this thing, because I'm legally smoking pot.

COATS: Yes, that's correct. I went into work one day, and my supervisor came up to me and he was like, you know, they want to talk to you in human resources. So, I go up to human resources and there was a sign on the door that says "random drug test".

So, I go in there and I told the girl I'm not going to pass this test. And she's like, you know, I just work here. So, she did a mouth swab. It's what the test was, and after that, I -- you know, I went home. Two days later, they actually called me at the lab that administers the test, and, you know, obviously, I didn't pass. I knew I wasn't going to.

So, I went into my how man resource office and talked to the manager and let her know that, you know, I smoke medical marijuana. I have a red card, a medical marijuana card. And she said, well, we have never had this come up before. So, she took a copy of my card, and said, we are going to deliberate on what we're going to do, talk to people who were higher up and we'll get back to you.

Well, for two weeks, they let me work and they actually got the reviews from my managers and supervisors. They actually met with me a couple of times, and asked me different questions. And after two weeks, I come in on a Monday and go to swipe my card to get in the handicap entrance, and the door wouldn't open. There was a security guard there to meet me.

So, we go up to the human resources office and they let me that -- you know, they were going to terminate my employment.

SMERCONISH: Brandon, I'm on your side. I'd be a hypocrite if I weren't on your side, and it's not because I'm smoking pot, but I enjoy a martini at night. This to me is akin to CNN saying to me, you can't have a martini at happy hour and come to work on a Saturday morning and host our television program.

But let me play devil's advocate. What would you say to someone who says, look, an employer has the right to determine and set the rules for their workforce, and if you don't like it, you ought to work somewhere else?

COATS: Well, what I'd say is, one of the places, like you said, you could go home and have a drink. In my view, or from my experience, alcohol is much more intoxicating than marijuana. You know, if I have too much alcohol, I can't function. If I have -- the more and more marijuana I smoke, just the bigger my headache gets if I smoke too much. I smoke a little bit. It alleviates my spasms and I'm able to function for the rest of the day.

In my view, why would we -- why would we pass a law saying that, you know, we could smoke medical marijuana and then, at the same time say, if you need this medicine, you can use it but, guess what, if you do use it, you can't work? I don't know how many states are -- you know, have medical marijuana now. I know it's a lot.

SMERCONISH: Twenty-three.

COATS: And there's probably hundreds and hundreds -- yes, that means there is hundreds and hundreds of thousands if not more than a million people who are on a medical marijuana -- or have a medical marijuana card and use medical marijuana. What that would do is that would say, hey, all these -- you know, a couple of million people, about (ph) hundred of thousand, however many it is, guess what, you can't work.

SMERCONISH: Here is the way I look at it -- Brandon Coats was fired for taking his medicine.

[09:55:01] That's how I'd sum it up.

COATS: That's what I'd say too.

SMERCONISH: Brandon Coats, thank you so much for being here and good luck to you.

COATS: Hey, thank you very much and thanks for having me on.

SMERCONISH: A lot of support for him in the Twitter verse, I can tell you.

I'll be right back.

(COMMERCIAL BREAK)

SMERCONISH: Every week, I end the show by saying, you can follow me on Twitter if you can spell Smerconish. I tweeted out just before the pot segment when Jay, my floor manager, said, this commercial break is 4:20 long. Now, they are calling me a pothead. I'm a martini guy. I'll see you next week.