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All Three Men Guilty Of Murder In Arbery Killing; Man Wrongfully Convicted Of Murder Freed After 4+ Decades; California Hit By Rash Of Organized "Smash-And-Grab" Crimes; Mixed Messaging On COVID-19 Continues As United States Enters Booster Era. Aired 9-10p ET

Aired November 24, 2021 - 21:00   ET

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

[21:00:00]

JOHN BERMAN, CNN ANCHOR: Wishing you a happy Thanksgiving.

NEIL DEGRASSE TYSON, DIRECTOR, HAYDEN PLANETARIUM: You got it. And to you too, and your whole staff. Thanks.

BERMAN: The news continues. So let's hand it over to Michael Smerconish in for Chris tonight on CUOMO PRIME TIME.

MICHAEL SMERCONISH, CNN ANCHOR: John Berman, thank you. I am Michael Smerconish in for Chris Cuomo. Welcome to PRIME TIME on this Thanksgiving Eve.

There's no longer any need to use the word alleged. It was murder. A jury has spoken. All three White defendants in Georgia convicted by an almost all White jury in the deep South of murdering Ahmaud Arbery, the unarmed Black jogger in 2020.

This was a trial that many had viewed as another test for racial bias in the justice system. And by that measure, it was a good day for equal justice under the law. Of the 27 total charges for Travis and Greg McMichael and William "Roddie" Bryan, only four resulted in not guilty verdicts.

The man who pulled the trigger and killed Arbery, Travis McMichael found guilty on all nine of his counts.

(BEGIN VIDEO CLIP)

JUDGE TIMOTHY WALMSLEY, SUPERIOR COURT, EASTERN JUDICIAL CIRCUIT: Count one, malice murder, guilty. Count two, felony murder, guilty. Count three, felony murder, guilty. Count four, felony murder, guilty. Count five, felony murder, guilty. Count six, aggravated assault, guilty. Count seven, aggravated assault, guilty. Count eight, false imprisonment, guilty. Count nine, criminal attempt to commit a felony, guilty.

(END VIDEO CLIP)

SMERCONISH: This has been a long time coming for the Arbery family and all who've been standing with them. This case went 74 days without an arrest. The first DA on the case was indicted for obstructing this investigation. Another had to recuse himself due to a conflict of interest, because of his ties to the McMichaels, and a third stepped down due to a lack of sufficient resources.

This trial almost never happened until there was a national outcry when the video surfaced. So Arbery's parents are understandably relieved.

(BEGIN VIDEO CLIP)

WANDA COOPER-JONES, AHMAUD ARBERY'S MOTHER: It's been a long fight. It's been a hard fight. But God is good. I never thought this day would come. But God is good. You know him as Ahmaud, I know him as "Quez," he will now rest in peace.

MARCUS ARBERY, AHMAUD ARBERY'S FATHER: (inaudible) Black children lives don't matter. For real, all lives matter. It's all our problem. So hey, let's keep fighting. Let's keep doing and making this a better place for all human beings.

(END VIDEO CLIP)

SMERCONISH: I have to say the guilty verdicts didn't surprise me, nor that this verdict came today instead of extending beyond Thanksgiving. What did pleasantly surprised me was the nuance of the verdict. The jury process mounds of evidence and 27 counts in the span of 11 hours, and their conclusion suggests this was an outcome based on evidence and analysis, not emotion.

Why do I say that? Well, the case was pretty straightforward factually, except for the final sequence when Travis McMichael shot and killed Ahmaud Arbery. At that moment, the video was partially obscured by the pickup truck and only Travis McMichael was alive to tell his version of what happened. He said that Arbery lunged for his gun and that he fired in self-defense, the jury rejected that testimony.

The law was potentially complicated. In lay terms, the judge instructed the jury that under the then applicable Georgia Law, a person can make citizen's arrest if a felony has been committed in their presence or within their immediate knowledge or if they had reasonable grounds of suspicion. What matters is whether they had reasonable suspicion, not whether he was actually committing a felony.

Someone effectuating a citizen's arrest can't use excessive force. One asserting self-defense can't be the aggressor. The target of an unjustified citizen's arrest can resist and use appropriate force on their own behalf and the prosecution must disprove a defendants claim of self-defense.

Against that backdrop, I wondered if their decision would be visceral all or nothing? Was Arbery hunted, trapped and killed? Or was Travis McMichael justified in taking his life? But instead of a case of jury nullification, this was a very deliberative outcome.

Yes, it can be said that each was found guilty of murder. But between the three only Travis McMichael was found guilty of malice murder, which is intentional murder. His father Gregory McMichael and neighbor William "Roddie" Brian were convicted on four and three counts of felony murder respectively, that is causing the death of another person while committing a felony.

On aggravated assault. Both McMichaels were found guilty of both counts. Mr. Bryan was convicted on one, acquitted on another. The not guilty verdicts, however, on four counts, I think, shows significant deliberation a willingness to resist a simple all or nothing finding.

Here's my bottom line. This was a quality piece of work by citizens who didn't shirk jury responsibility. They showed up, they listened, they watched and they came to a logical conclusion.

[21:05:00]

And for all the talk about race it was 11 White jurors, one person of color who delivered this justice. So a good day for the judicial system, not because of how the case turned out, but because of how these jurors got there.

Let's bring in some other opinions. Two criminal defense attorneys who you know, CNN Legal Analyst Joey Jackson, and Mark O'Mara, who helped get George Zimmerman acquitted in the Trayvon Martin case.

Mark, I'll begin with you. You heard my analysis, my take, big picture. What did you think about the jury verdict?

MARK O'MARA, CRIMINAL DEFENSE ATTORNEY: I almost need to say ditto, Michael, because it was right on point. I told you in a previous conversation, I was a bit worried that we would not get a verdict today and that we might have a difficult time with getting a verdict, because of the geography, because of the makeup of the jury, and because we have these competing interests of citizen's arrest on one side, self-defense on another.

And yet we have the evidence of this tracking down, not suggesting citizen's arrest when they had the opportunity to talk to the police initially, this trapping like a rat. And I really thought that we might have a jury who was wrestling way too much with those nuances of the law. But I have to agree with what you said, they looked at this.

And I found the deliberations that led to the acquittals extraordinarily significant, because they were paying attention. They held the liability and the responsibility on the on Travis first than dad sort of second. And then Roddie Bryan third, and I thought that was perfectly done in compliance with the law and the facts.

SMERCONISH: Joey, big picture reaction, and also remind everybody, as I said at the outset, we almost never got here, right. I mean, but for the video, there would never have been a prosecution.

JOEY JACKSON, CNN LEGAL ANALYST: Yes, that's absolutely right. Michael, I'm in accord with your analysis as, Mark. You know, this is interesting, because you can look at it on the one hand and say it's a broken system, or you could look at it on the other and say it's a system that works.

What do I mean? And how as we never got here, or perhaps we would not have been here. You look at the first district attorney who now herself is under indictment. She's under indictment for issues relating to her obstructing the police from making the arrests. She's under indictment for issues associated with just interfering in that process.

And then you have who I speak of is Jackie Johnson, she had recused herself and gives the case to George Barnhill. He then writes an infamous memo, basically saying, there's nothing to see here and blaming Ahmaud Arbery for being the criminal.

It then goes to a another prosecutor, who as you indicated, right doesn't have the appropriate resources. And then we have the state really step in. All of that is done against the backdrop of humanity, people crying for justice, people really yearning for something to occur here and knowing that something is amiss.

So you have this videotape. Now you have the outraged public, and now you have 74 days, two and a half months later, where finally, there's indictments that are made, there are arrested that are made, and there are people who are brought to justice. And then of course, the process begins.

And not withstanding that process which is somewhat broken, but isn't broken, if you have people who can rise up - good people of goodwill and say, you know what, something's wrong here. We have to take a closer look. And then when you take the closer look, Michael, you have a situation where you have a jury, which is in panel, then a judge, if I might remind everyone says you know what, this is intentional discrimination as it relates to 11 White jurors being selected in one African-American.

But yet you have that jury that parses through, and they render a verdict that speaks to facts as we know them to be, that speaks to the rule of law that we know it to be, and speaks to the issue of humanity. Which goes to demonstrate and show that at the end of the day of if juries (inaudible) look, whether they're black, white, yellow, green, whatever, who they pray to, whatever they wear et cetera, right, who they love, they come up with a verdict, which I think is absolutely right on the law. Final point.

And the verdict, as Mark alluded to and as you have too, is very nuanced with respect to making findings on the law, not emotion, not sympathy, not anything else. But going through everything, coming into that court, let's see the 911 tape, let's look at the video three times and thereafter rendering a verdict, which I think is just and appropriate. It shows a system that after it was broken, was fixed and really comes to this day. And so what a heartening moment for that particular community for Georgia and for the United States of America.

SMERCONISH: Yes, and a day that you can believe in the system again, not because of the outcome, but because of the way they got there. This collection of 12 neighbors who got together, listened to the evidence, didn't rush, methodically went through that slip. Mark O'Mara when it was all said and done, the Reverend Al Sharpton had a media availability with other folks on behalf of the family of the deceased. He said something of interest that I want to play for you and everybody else.

[21:10:00]

(BEGIN VIDEO CLIP)

REV. AL SHARPTON, CIVIL RIGHTS ACTIVIST: Let the word go forth all over the world, that a jury of 11 Whites and one Black in the Deep South stood up in the courtroom and said that Black lives do matter. Let it be clear that almost 10 years after Trayvon, God used Wanda and Marcus's son, to prove that if we kept marching, and kept fighting, we would make you hear us.

(END VIDEO CLIP)

SMERCONISH: You heard reference to Trayvon Martin, what parallels between that case in which you were involved and this case today?

O'MARA: Well, look, from 10,000 feet up, there are a lot of similarities. I mean, let's look at it this way. Black guy running through a neighborhood - maybe a whitish kind of neighborhood, as in case here. Tracked down or watched by somebody and eventually shot. So when you look at it that way, I understand Reverend Sharpton's analysis. And also it looks as though back then justice wasn't served and finally it did happen here.

But as we've talked about, Michael, and now to redefend George Zimmerman from almost a decade ago, when you look at the facts themselves, the way that George was acting, talking to the police, not chasing after Trayvon after he was told not to. That there was that four minute span in between George and Trayvon where it seemed Trayvon came back, the injuries to George. When you really do look at it, there are there are many more differences than there are similarities.

But I will grant this and I have fought this my entire career. There is no question that there are still ongoing implicit biases in the criminal justice system against young Black males. It is great that we have this verdict to say it's not as much as it used to be 10 years ago, or 20 years ago. But let's be realistic about this also.

And I'm glad about this that we are now in the age of video, we would not have had an arrest and certainly not a conviction with George Floyd's case, if but for the video. And we even had an investigation if it wasn't here.

SMERCONISH: No doubt. Joey Jackson, I'm out of time, but for 20 seconds, the feds do pursue this case - the case that we're talking about tonight, right?

JACKSON: They do, you know, different theory, different standards with respect to what they have to prove motivated by racial animus, of course, right? That is the bias as it relates to their race of why they pursued him interference with his rights, attempting to kidnap him, I think you have to do it and you have to set the example. This is not OK. The federal government does it. The state government does it. And that's what we call justice in America.

SMERCONISH: Joey Jackson, Mark O'Mara, thank you for coming out to play the night before Thanksgiving. Wish you good things tomorrow.

O'MARA: Happy Thanksgiving, Michael and Joey.

JACKSON: Thank you, Michael.

SMERCONISH: The justice system, it worked in this case, but not for my next guest. He spent decades behind bars, finally get his life back after one of the longest wrongful conviction sentences in our nation's history. Why did so many, including Missouri's Governor, ignored the truth? The newly exonerated free man joins me next.

(COMMERCIAL BREAK)

[21:15:00]

(BEGIN VIDEO CLIP)

BILLY JOEL, AMERICAN SINGER-SONGWRITER: I took the good times, I'll take the bad times. I'll take you just the way you are.

(END VIDEO CLIP)

SMERCONISH: Billy Joel won the Grammy for Record of the Year for that song in 1978. What else happened in 1978? Well, Jimmy Carter was the President, gas was $0.63 a gallon, the top three films Grease, Animal House, Superman. 1978, that's also the last year that my next guest was able to walk freely before he was sent to prison for a murder that he did not commit.

Kevin Strickland, now 62 years old, but he was only 17 when he was charged in a shooting that killed three people in Kansas City on April 25, 1978. Strickland was found guilty by an all-White jury after his first trial ended as a mistrial when the lone Black juror refused to convict.

He maintained his innocence for decades. And in 2015, the sole survivor in the shooting recanted testimony that Strickland was at the scene. She says she was pressured by police. Not only that, but two other men convicted in the shooting, said that Strickland was not with them. And even the original prosecutors of the case said that they now believe Strickland was innocent.

Still, he could not get a judge to look at his case. That is until this year, thanks to a new criminal justice reform law that allows prosecutors to refer cases to a judge where they feel a mistake was made.

43 years, after he was first locked up, Strickland finally got a hearing and a judge overturned his conviction, making him the longest serving wrongfully convicted prisoner in Missouri history. Mr. Strickland joins us now alongside his attorney and Executive Director of the Midwest Innocence Project, Tricia Rojo Bushnell.

Mr. Strickland a lot has changed since 1978. I know you've only been outside a short time, but what has been most jarring as you are re acclimating to the outside world.

KEVIN STRICKLAND, EXONERATED AFTER 43 YEARS IN PRISON: What has been most jarring? As a difficult to technology, I mean, telephones, TVs, trying to get familiar with those things in such a short period of time already. The money, I actually saw cash - couple of cash dollars today, couldn't believe the size, I mean, the change.

Jarring, I guess, you know, it's difficult for me to go deeper into that. But as you just mentioned when the show was done, there's been a lot of changes. Lot of changes.

SMERCONISH: I know that at the top of your list as a free man was to visit the grave of your mother who passed while you were away. Tell me about that experience.

[21:20:00]

STRICKLAND: It was - it was tough to just see that dirt. And know my mother, you know, was underneath. I mean, that she was a fighter and she tried to hold on. But what it was like was - is heartbreaking. She tried to hold on, and if I was to be decided, I was supposed to see that day before she passed. So is very difficult and you got to get me started with that one. But I'm good. Yes, it's difficult.

SMERCONISH: OK, I'm not looking to get you started. I was just curious about the experience. And I know that the short list is an ocean visit, right? That's on the absolute things, must-do bucket list, as we say?

STRICKLAND: Correct. Correct. Yes. As, I think, I've said numerous other times, this just doesn't make sense to me a person get - 40, 50, 60 year life and don't ever go to see the ocean or get in the ocean. There's just so much water. They say it's three quarters water. And you know, I need to - I would like to go out there and do that. And not just off the beach, but out there were ships and things sail. I want to do that.

SMERCONISH: Counselor, I know you and others have been fighting for a long time in this case, what finally broke in?

TRICIA ROJO BUSHNELL, ATTORNEY TO KEVIN STRICKLAND: So this is one of the cases where they have the unusual position of a prosecutor really examining a case and agreeing that someone is innocent. Unfortunately, that itself wasn't enough to bring Mr. Strickland home.

I mean, the evidence of Mr. Strickland's innocence has been around since 1979. He's filed 17 habeas petitions on his own, nothing would bring that forward. The prosecutor backed it, we filed, we still couldn't get it move forward. It took a law to that came into effect that allowed a prosecutor to file such a motion to begin the process.

But even then it still took months and months, because of the way the system was designed here in Missouri, it allows the attorney general to also have a part in that proceeding. And in this case, the attorney general fought Mr. Strickland's release even though the prosecutor agreed that he was innocent.

SMERCONISH: I know that his - I know that his initial conviction was predicated on a lineup eyewitness testimony. What, if anything, does this case tell us about the reliability of eyewitness testimony?

BUSHNELL: Yes, our understanding of eyewitness identifications has just changed tremendously since 1978. I think most people think that if an eyewitness says they saw something, it must be true, it must be the most reliable. But we actually know that stranger identifications are some of the most unreliable.

And in Mr. Strickland's case what was most interesting is, the victim knew Mr. Strickland, she didn't identify him on the night that it happened, gave two other names and that actually shows that it wasn't him. That's an exculpatory evidence. She only made an identification later after other people came to her and said, well, doesn't he hang out with those other people?

And that's what we know, is that sort of suggestive nature changes the way our memory looks at things. And so as you can hear the prosecutor say they wouldn't even charge that case today.

SMERCONISH: Why such a challenge to right the wrongs in a case like this?

BUSHNELL: You know, I think that's a great question that we hope those who fight it have to answer. I think, unfortunately, Missouri, the Attorney General's Office has had a history of fighting every innocence case for the last 30 years. And Mr. Strickland's was no different.

But I think the large amount of attention that is been made to what Mr. Strickland has experienced, particularly for the amount of time that he had to go through it is, really bringing this to light to the rest of the folks who get to decide who we elect to decide which justices, you know, who - what is that that we want that to look like, and why should it be this hard? And I think the answer is none of us think it should be.

SMERCONISH: Tricia Rojo Bushnell, another important aspect of this case before we leave, under Missouri Law, correct me if I'm wrong, he's not entitled to compensation for all the time that he was behind bars for a crime that he did not commit, according to the system? What are you doing about that?

BUSHNELL: That's correct. So Missouri is one of the minority of states that doesn't provide for any compensation. You know, certainly we're asking - we'd love for that to change. But in the meantime, Mr. Strickland's future is really resting in the kindness of strangers, so we have set up a GoFundMe account for him in hopes of providing for him.

He's not entitled to Social Security, for example, because he didn't pay into it into in all those years. And so, really, it's the community that's going to be providing that support.

SMERCONISH: Mr. Strickland final question. How do you feel, any sense of bitterness? Obviously, you're relieved to be out, but how would you sum up your emotions?

[21:25:00]

STRICKLAND: I think I've created a few, as I've said, that most people don't know about. But frustration, disappointment, impatience. You know, I wouldn't put, you know, bitterness and anger in there. It's just more so frustration that it took them this long to finally get a judge that will hear all the evidence after I repeatedly filed a petition after petition - petition on my own, trying to have somebody hear my situation. So it would be frustration.

SMERCONISH: Kevin Strickland, wish you good things. Tricia Rojo Bushnell, congratulations on your success on behalf of your client and thank you.

STRICKLAND: You're welcome.

SMERCONISH: Yet another big smash-and-grab robbery in California. The wave of organized retail thefts, hitting upscale stores in major cities, but particularly in California. How come? And what's the state doing to combat this growing crime trend. We'll take it to the Attorney General of California. That's next.

(COMMERCIAL BREAK)

[21:30:00]

SMERCONISH: It happened again, another organized smash-and-grab at a high end store. This time police say 18 people hit a Nordstrom in L.A. Meanwhile, cops in San Francisco still looking for most of the 80 robbers who overran another Nordstrom outside of San Francisco. Seems like this are happening all over, but are becoming increasingly common in California.

This type of organized shoplifting exploded during the pandemic. The FBI says we're talking in the ballpark of 30 billion a year in losses. L.A. and the Bay Area lead the nation, with Sacramento also in the top 10 for cities plagued by this trend. The challenges are both practical and political in this one's tough on crime state that has seen a wave of reform minded prosecutors.

They include my next guest, California's Attorney General Rob Bonta. Mr. AG, thank you so much for being here. Why California? And what are you doing about it?

ROB BONTA, CALIFORNIA ATTORNEY GENERAL: Good evening, Michael, thank you for having me. You know, I just want to be clear about what's happening in California and across the nation, it's awful, it's unacceptable. It's unsafe for our shoppers, for our businesses, for our communities at large.

And this is organized retail crime. This is not petty theft. This is not shoplifting. This is not a teenager stealing candy from the store. This is organized, this is planned. This is premeditated. There is intent, there is use of weapons like crowbars, hammers, guns, including ghost guns, pepper spray. Flash mobs up to 80-90 people stealing up to a million dollars.

So we're going to continue to do what we do. This is an area where we have investigated and prosecuted crimes. We have some - right now that we're working on, we're announcing a sentencing in early December. We have other cases at different stages of the criminal justice process. We have arrests, we have arraignments, we have other sentencings. We have investigations that were just starting.

So we're going to continue to do the work that we do, work with our partners, collaborate and rise to the occasion to keep California safe, which is what they deserve. And they deserve all of their law enforcement leaders working together to help make that a reality.

SMERCONISH: But the incidence - the incidents seem to be disproportionately occurring in California. From 3,000 miles away I can't help but think that it's because felony prosecutions, you correct me if I'm wrong, don't start until $950. And I know that's by virtue of one of the propositions, I think it was $47, a couple of years ago. Do you think that's what explains why California seems the aberrant case?

BONTA: Not at all. And respectfully, I think you're wrong. These are clearly felonies. These are not misdemeanors. These are clearly cases of grand theft, not petty theft. There's burglary, there's robbery, there's crimes of organized retail theft. Under California Law, there is receipt of stolen property, so--

SMERCONISH: But Mr. AJ, if I can interrupt, as people are seeing the footage of individuals who are running out with articles of who knows what in their hands? If I'm one of those, I'll call them looters. And I'm stealing something that's worth $925. I'm being prosecuted if you catch me for a misdemeanor, right?

BONTA: That's not what's happening here. So let's be clear. These are--

SMERCONISH: But am I right about that? Am I right about what I just said?

BONTA: You are right that the threshold in California between a petty theft and a grand theft is $950, which is consistent with the rest of the nation, except for the outlier of Texas, which is at $2,500, much higher. So we have a threshold which is consistent with the rest of the nation.

And - but that is not what's happening here. These are not petty theft. These are not misdemeanors. They're clearing out the stores. This is looting, this is havoc. This is people using weapons. So it is wrong, respectfully, to see this as a shoplifting incident contemplated by Prop 47. What is happening here has been illegal and has been felonies in California for many years, and Prop 47 didn't change that. SMERCONISH: Were disproportionately much of this seems to be taking place in San Francisco, have you contemplated using your state constitutional powers to provide more of a supervisory role over the San Francisco District Attorney?

BONTA: We are in contact with San Francisco District Attorney's Office as well as the other District Attorney's Offices involved in the most recent cases that we've seen, that have been visible over the last few days - Contra Costa, Santa Clara, and we're offering our support, our collaboration, our resources, our intelligence, our coordination. And that's what this moment requires.

It requires law enforcement working together to solve the problem. And the problem is we need to bring the individuals involved in this organized criminal activity to justice. They need to be held accountable. They need to know that if they commit these crimes they will be arrested. There will be accountability, there will be consequence. So we're working with our DAs and our law enforcement partners.

[21:35:00]

We're also working with the Governor's team and his CHP Task Force. We're part of that task force to specifically addressed organized retail crime. And we're going to do our part to make sure Californians are safe, and that there's accountability in these incidents, and that will stop them going forward.

SMERCONISH: Right. I, of course, understand and believe in the need to hold these perpetrators accountable. But similarly, my understanding is you have a state constitutional authority, if you exercise it, where you can become much more directly involved and play a supervisory role over the district attorneys about whom you've just spoken.

What about the accountability of those prosecutors? Are they being too soft? And if so, will you do something about it?

BONTA: Well, look, let's look at the facts. The San Francisco County District Attorney has made nine arrests and brought felony charges. The Contra Costa District Attorney has made arrests and brought felony charges. The Santa Clara County District Attorney has made arrests and brought felony charges. These are felonies. There should be arrests and there should be felony charges.

So I do have a constitutional role with - over my - over sheriffs in the State of California and DAs to work with them and provide support, collaboration, and when necessary, supervision. And right now we're at a stage where we're working in tandem to provide the best service and the most public safety for the people of California.

SMERCONISH: Mr. Attorney General, I wish you good things with this and thank you so much for being here.

BONTA: Thank you for having me. Honored to be with you. SMERCONISH: You too. With the holiday season upon us, many vaccinated Americans are rushing to get booster shots for more protection. The FDA and CDC now recommend boosters for all adults. So should the definition of fully vaxxed be limited to those who have both the underlying inoculation and the booster? We'll ask a top medical mind what she thinks. Next.

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[21:40:00]

SMERCONISH: There's a conversation unfolding about whether the definition of fully vaccinated ought to include a booster. Why? Well, the current increase in COVID infections is driving more concern over waning immunity from initial shots. And now that the CDC has authorized a booster for all adults, some think that should be the new standard. But that's not what Dr. Anthony Fauci just told CNN in the LAST HOUR, watch.

(BEGIN VIDEO CLIP)

DR. ANTHONY FAUCI, DIRECTOR, NATIONAL INSTITUTE OF ALLERGY AND INFECTIOUS DISEASES: Right now officially, John, the definition of fully vaccinated is still two doses of the Moderna or Pfizer and one dose of J&J. That's the requirement when people talk about what is required for this or for that. But that does not actually contradict the fact that we're saying, as vaccine efficacy wanes, you need to get that booster to bring you right up.

(END VIDEO CLIP)

SMERCONISH: For more on this, I want to bring in former Baltimore City Health Commissioner Dr. Leana Wen. She's also the author of the new book, "Lifelines: A Doctor's Journey in the Fight for Public Health." Dr. Wen, nice to have you back. Should the definition of fully vaccinated be changed and now be limited to those who've been inoculated and also have received a booster?

DR. LEANA WEN, CNN MEDICAL ANALYST: I think when people are asking this question about definition, what they're really asking is, is it really essential at this point to get the booster dose? The answer to that is, absolutely yes.

We know that the two doses of Pfizer Moderna or the one dose of Johnson & Johnson initially provide very good protection, but that very good protection wanes over time. However, you can restore that excellent protection by getting an additional dose.

By the way, this is not unique to the COVID vaccine, you have to hepatitis vaccine, that's a three dose vaccine, polio vaccine, that's a four dose vaccine. You've got tetanus vaccine that you need a booster dose every 10 years. Or the flu vaccine that you need to get an annual vaccine. We just don't know at this point as to which category the COVID vaccine falls into.

Maybe it is actually a three dose vaccine. It doesn't really matter, because what matters at this point is what we know, which is that every adult in America needs to go get a an additional dose at this point, if they're six months out from Pfizer or Moderna or two months out after Johnson & Johnson.

SMERCONISH: OK. But I'm respect to all that. I'm asking a very practical question. My employer here CNN has a vax mandate, a law firm where my license hangs, has a vax mandate. I went to see Dead & Company this summer, I had to show my vax card. I'm going to go eat at a restaurant that is likewise, during this weekend.

At what point does the definition of being fully vaxxed in any of those contexts mean, I not only had my two Modernas, but I also had my booster, which by the way I did last Saturday.

WEN: I'm glad you got your booster. And I appreciate the question. I think that we should go that route of changing the definition sooner rather than later. And that's because during this entire pandemic, the U.S. has been behind. We've been behind other countries. We've seen the predictions for what could come our way and we don't act until it's happened.

Well, in this case, we've seen what's happened in Israel that they were experiencing a new surge, but they were able to prevent that surge by getting everybody third doses. A lot of other countries, including Israel, are requiring for - in order for people to be considered fully vaccinated, in this case, they do need to get their booster and I think that's a that's the direction that U.S. needs to move in.

And the reason too is that there's been so much confusion around the messaging of these boosters. So many people still believe that the booster is a luxury. It's a nice to have, rather than something that's essential. And so changing the definition, as you said, I think would really make the point that we really need to get people that additional dose at this point.

SMERCONISH: Right. So I'm understanding, I think, what you're saying and I agree with it that we need to get there sooner than later, change the definition. The downside, I think, is that the unvaxxed - the vaxxed, I no longer say hesitant, because they're dug in. But I fear that now they're going to say, oh, my God, now they want me not only to have the two shots, then I'm supposed to get the booster. This never ends. Maybe we lose all hope at ever bringing them over. What do you think?

[21:45:00]

WEN: It's a fair point that one of the arguments that people say why they're remaining unvaccinated is they say, well, we don't know how many doses of the vaccine we need. But that's really not the right argument. I mean, we don't know, because this virus hasn't been a long or hasn't been around for that long, and we're finding out as we go along.

I don't think that at this point, we need to cater our policies towards the unvaccinated. We need to do what it takes to protect the vaccinated. And I think there are just a lot of people who are confused about whether they need that additional dose.

And so changing the definition and saying that, in order to be considered to have the initial protection - full protection, that you cannot be, let's say, more than six months out from having whatever most recent dose. I do think that that's helpful for boosting the overall population immunity and helping us to see through this winter surge.

SMERCONISH: Dr. Wen, thank you for all of that. Happy Thanksgiving to you.

WEN: Thank you. And to you too, Michael.

SMERCONISH: This is the first Thanksgiving since COVID vaccines have been going in arms. We can be thankful for that. Did you know that tomorrow is the 400th Anniversary of Tea Day. Americans celebrate every year, but I'll bet there's a lot we don't know about the holiday and a lot that we think we know that may not actually be true.

So we shall gobble up the real facts from a great historian who has them. And we'll do that next.

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[21:50:00]

SMERCONISH: Across the country tomorrow, you'll likely gather around the table with people that matter to you. The images of Thanksgiving are is baked into our collective imagination as the best pumpkin pie.

We all grew up with images of the pilgrims on Plymouth Rock and their iconic hats. For many of us, it's as much a part of the holiday as the turkey. But much of what you think you know about Thanksgiving may just be a myth. So let's get aside of truth this year with Historian Kenneth C. Davis. He is the author of the, "Don't Know Much About History" franchise. Ken welcome back. What's Abraham Lincoln got to do with it?

KENNETH C. DAVIS, HISTORIAN: Well, it was in 1863, Michael - and good evening and Happy Thanksgiving to you. 1863 that Abraham Lincoln signed what was the first in a series of presidential proclamations, setting Thanksgiving on, then the last Thursday in November, that would change. This is the first in what is now an unbroken string.

Lincoln's proclamation coming in the midst of the Civil War, when there was very little to be happy about or to be thankful for is quite an extraordinary note that we should remember today. That even in the midst of a very, very disastrous situation, we can all be grateful.

SMERCONISH: When I was a kid, my parents took my brother and me to Plymouth Rock in New England, I'll never forget it. Should they instead have taken us to Florida?

DAVIS: Well, there was a group of pilgrims who came to Florida 50 years before the Mayflower sailed. They were French. And they landed just off of what is now Jacksonville. And they set up camp there. The Spanish didn't really appreciate them. The Spanish, of course, being good Catholics, these pilgrims being French Protestants, so they sent an a fleet over to wipe them out.

And so the first pilgrims in America, people coming for religious freedom, and they probably had Thanksgiving as well, ended up in a religious massacre. And that's an important piece of the history that we have to remember as well. How important religion has been as a motivating force throughout our history, and sometimes a very divisive and intolerant one. Again, something to think about as we're being grateful on this Thanksgiving.

SMERCONISH: If we were really honoring the tradition, in a strict sense, would we be eating lobster and shrimp tomorrow in addition to or in lieu of turkey and stuffing?

DAVIS: Well, Governor William Bradford gave us a pretty good picture of what they ate, which was probably by the way in October of 1621, not November, and there was a duck, geese and turkey, but wild turkey. They certainly would have had a lot more seafood. Cod is what kept them alive, mussels and eel. So if there's not eel on your table, you're not historically accurate.

We could also add the venison. The 90 uninvited guests - Wampanoag warriors who showed up for the pilgrims - the so-called pilgrims first Thanksgiving, went out and killed five deer. And by the way, you might spend a lot of time at the table tomorrow.

They spent three days back in 1621 celebrating this first harvest, mostly being grateful for the fact that they had survived. One half of the 100 passengers on the Mayflower died in that first year. It was a bitter and difficult struggle. And it's really a fascinating story, much more interesting than the mythic version we got back in grade school.

SMERCONISH: I feel like the next thing you're going to tell me is that the Native Americans and pilgrims really didn't play touch football.

DAVIS: They didn't play touch football. But we do know from Governor Bradford that there were races and wrestling. And the pilgrims also took out the muskets to - in a bit of a show of force to remind the natives that this is what they had.

[21:55:00]

And that's an important reminder as well, that a few years after that first Thanksgiving in 1621 the son of the chief who sat down with the pilgrims in 1621, was at war with them, in what was one of the most brutal wars of the colonial era called King Philip's War. These are the pieces of the story we often leave out. But facts are stubborn things, as John Adams once said, and a great nation should not hide its history. We should understand the full story. Facts really are what give us the truth and the truth sets us free.

SMERCONISH: Amen. Hey, as frustrating as things are today from political polarization, I guess it was worse in 1939, as I've learned from you, because that year we couldn't even agree on what day was Thanksgiving. Kenneth C. Davis, thank you so much. Appreciate you coming back. Have a great day tomorrow.

DAVIS: Happy Thanksgiving to you, Michael. Good night.

SMERCONISH: And to you good night. We'll be right back. Right after this.

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SMERCONISH: Thank you for watching. Have a great Thanksgiving. "DON LEMON TONIGHT" begins right now with Laura Coates sitting in.