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Smerconish

Thirteen-Year-Old Paints Joe Biden In Empathetic Light During The DNC; The Electorate's Deepening Divide; Will Kanye West's Absence From Wisconsin Ballot Boost Biden?; Families Rebel Against Cost Of Online College; Officer's Defense: George Floyd "Killed Himself". Aired 9-10a ET

Aired August 22, 2020 - 09:00   ET

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

[09:00:00]

MICHAEL SMERCONISH, CNN ANCHOR: I'm Michael Smerconish in Philadelphia. The Democratic National Convention received high marks for its adaptability, glitch-free presentation and conveyance of a cohesive message that masked any divide between its nominee and more extreme members of the party. Eight hours of daily programming were carefully choreographed. Little was left to chance, including the run- up to Joe Biden's acceptance speech on the final night.

Of course, there was the obligatory life story video and tributes from family members and all of the star power the party could muster. Gavin Newsom, Tammy Baldwin, Tammy Duckworth, Chris Coons, Keisha Lance Bottoms, they all spoke. Seven former Biden primary opponents sang his praises Zoom style in a chat that was moderated by Cory Booker and featured Bernie Sanders, Elizabeth Warren, Amy Klobuchar, Beto O'Rourke, Andrew Yang and Pete Buttigieg. Michael Bloomberg spoke too.

Steph and Ayesha Curry and their daughters provided some celebrity and some humor, but the showstopper was a 13-year-old named Braden Harrington. Speaking from his New Hampshire bedroom, this soon-to-be eighth grader did something remarkable. He humanized a man 64 years his senior and he provided a safety net which ultimately Joe Biden didn't need. Braden met Biden on the campaign trail in Concord back in February, at which time they shared a private moment about their mutual childhood affliction with stuttering.

That was the same month that "The Atlantic" John Hendrickson published a revealing look at Biden's lifelong battle with stuttering and his own. Hendrickson explains that he'd wanted to interview Biden on the subject and was finally given access after the former vice president stumbled for his words in a Detroit primary debate.

(BEGIN VIDEO CLIP)

JOE BIDEN (D), PRESIDENTIAL NOMINEE: My plan makes the limit of copay to be $1,000 dollars because we further support the ability to buy into the Obamacare plan.

(END VIDEO CLIP)

SMERCONISH: In "The Atlantic," Hendrickson wrote this, "Stuttering is a neurological disorder that affects roughly 70 million people, about 3 million of whom live in the United States. It has a strong genetic component. Two-thirds of stutterers have a family member who actively stutters or used to. Biden's uncle on his mother's side, 'Uncle Boo- Boo,' as he was called, stuttered his whole life."

For this profile, Joe Biden shared an embarrassing story about how he'd been humiliated by a nun during a classroom reading exercise in middle school. He walked out of school that day only to be driven back by his mother who then confronted the nun and said, "You do that again, I'll knock your bonnet off your head." For much of the campaign, Biden's stumbles have become the stuff of "Fox" blooper reels.

(BEGIN VIDEO CLIP)

BIDEN: The biopharma is now where things are going to go. It's no longer chemicals. It's about all these breakthroughs we have with the whole -- you know, the whole -- excuse me -- immune system.

STEVE HILTON, FOX NEWS HOST, "THE NEXT REVOLUTION WITH STEVE HILTON": As the right words struggled to make that perilous journey from Joe Biden's brain to Joe Biden's mouth, half the time he just seemed to give up with this somewhat tragic and limp admission of defeat.

BIDEN: Anyway -- anyway -- anyway ...

UNIDENTIFIED MALE: Thank you, Mr. Vice President.

(END VIDEO CLIP)

SMERCONISH: President Trump has led the charge openly and routinely questioning Biden's mental faculties, but that comes with political risk to Trump. He set a low bar for Biden and on Thursday night, with the aid of a 13-year-old who set the stage and provided a certain level of inoculation, the former vice president cleared it.

Yes, critics will say, well, he was reading from a prompter and it's true, he will need to sit for spontaneous questioning and exchanges, but Thursday night, Biden looked nothing like his caricature.

He spoke forcefully and with an empathetic message. He garnered praise from unlikely places. Pundits on Fox's DNC panel called Biden's speech enormously effective. Dana Perino said that the former VP, quote, "Just hit a home run in the bottom of the ninth."

Karl Rove said the speech was, quote, "Very good and that if he were a GOP strategist right now, he'd be worried." There were no stumbles, no stuttering, but had they come, they would have been ameliorated by a teen in New England in a way that none of the Democratic stars could have insured.

So circle September 29 on your calendar. That's the first and arguably most important presidential debate. That night, America will catch an unscripted glimpse into both candidate's fitness for the presidency. Will they exceed expectations or make fatal stumbles? No prompters, no large, live audience. Just two men and a moderator and tens of millions of Americans on the edge of their seats.

I want to know what you think. Go to my website this hour at Smerconish.com and answer this question.

[09:05:00]

Did Joe Biden's acceptance speech neutralize Donald Trump's questioning of Biden's cognitive abilities?

The stark division of the national electorate becomes clearer by the day as we inch toward November. The Democratic National Convention was very much a tribute to America's growing diversity and it appears that approach is working. Polls show Biden gaining big advantage with young people, racial minorities and college educated white voters.

This is a far cry from the President's support system. Latest surveys show Trump maintaining strong support among white voters who are uneasy about those changes, especially those who are evangelical Christians, live in rural areas or lack a college degree.

Joining me now to discuss his piece is "Atlantic" senior editor Ron Brownstein. This recent essay was titled, "The Democratic Convention is a Reality Check for Trump -- Blue America is only growing." Ron, great, great essay, lots of good data and you said, "Democrats offered a 21st Century version of a Norman Rockwell painting." Explain.

RON BROWNSTEIN, SENIOR EDITOR, "THE ATLANTIC": Well, look, I mean if you -- if you look at the, you know, group keynote address, if you look at the roll call of the states, if you look at some of the reaction walls they put up to Kamala Harris and to Biden, it showed the reality -- that America is growing inexorably more diverse, you know, both racially, culturally, in religious terms. White Christians are down to about 42 percent, 43 percent of the country after being a majority for most of our history and you see this very stark divide, as you noted, between the parties.

You know, I have -- I have said for about a decade now that we have a coalition of transformation and a coalition of restoration, that the fundamental dividing line in our politics is that Democrats mobilize the people, the place -- and the places that are most comfortable with the way America is changing demographically, culturally and economically and Republicans mobilize the voters who are the least comfortable and in some ways the most antagonized by the way America is changing.

And all of that, that kind of long-term evolution and reconfiguration of the parties has really been accelerated under Trump. It was big in 2016, it was bigger in 2018 and I think it will reach an unprecedented height. the trench between these two Americas I think is going to be variegated (ph) in 2020.

SMERCONISH: I'm a big Rockwell fan. In 1948 for "The Saturday Evening Post," I'll put up on the screen, I think it was called the Gossip or the Gossip Chain. There it is. That's America in 1948.

BROWNSTEIN: Yes. SMERCONISH: Now let's contrast that with the 17 who delivered the keynote address on Tuesday night and then a third screen shows Kamala Harris having completed her acceptance speech now facing a Zoom-like wall. It's a much changed country, as is evident in just those three images, Ron.

BROWNSTEIN: That's wonderful. I mean, look, even as late as -- you know, Donald Trump is channeling Richard Nixon with law and order. Even as late as 1968 when Nixon won, and he won with a more subtle approach than Trump is using, 90 percent -- 91 percent of the voters were whites, almost 80 percent of the voters were whites without a college education, his core group, but the reality of kind of the modern Republican party is that Trump has sentenced the GOP to a strategy of squeezing bigger margins out of groups that are shrinking at the price of alienating the groups that are growing.

That doesn't mean he can't win, but the reality is that his core groups of whites without a college degree, evangelical Christians, rural residents are all shrinking as a share of the population and the groups that he is struggling the most with, which are Millennials and Generation Z, college educated white voters where he could face the biggest deficit, I think will face the biggest deficit of any Republican nominee ever, secular voters, people who live in the big metros, those are the -- those are all growing.

So while you can envision a pathway for him to, you know, maximize turnout among his groups and squeeze out another electoral college victory, the fact is is that he's likely to lose the popular vote and if he does, Michael, Democrats will have won the popular vote in seven of the last eight presidential elections which no party has ever done in the history of the modern party system since 1828 and you have to ask yourself how many businesses would have a model that is the equivalent of Trump's political model where you say I'm going to -- I'm going to squeeze out bigger market share out of the shrinking markets at the price of writing off the markets that are growing?

SMERCONISH: You could only get so much pulp, though, from a grapefruit or from an orange and and one wonders whether there's enough left to propel him to victory. I'm going to put on the screen some amazing data that you pulled together, I think from Pew, which says this, "From 2004, the last time a Republican presidential candidate ...

BROWNSTEIN: Yes.

SMERCONISH: ... won the popular vote through 2016, the GOP's core group of non-college educated white voters tumbled from 52 to 42 percent of the total national vote.

[09:10:00]

Over that period, those same voters declined as a share of the electorate across a broad group of battleground states. Nine percentage points in the prototypical Midwest states of Wisconsin, Minnesota, Michigan and Iowa; 8 in Ohio; 7 in Pennsylvania," et cetera, et cetera. But Ron, nevertheless I don't see any effort by the Republicans and frankly, this past week, not much from the Dems to expand ...

BROWNSTEIN: Yes.

SMERCONISH: ... beyond their bases. Each seems content to just drive the vote they already have. You get the final word.

BROWNSTEIN: Well, no, I think -- I think the one exception that is obviously Democrats brought in a lot of Republicans and they -- to speak and they are hoping to improve among those college educated Republicans, particularly men. I mean, Biden is polling at a level we haven't seen before among college-educated white men and a lot of those people have to be voters who previously leaned Republican.

But I would say it was notable that there was not more of a direct economic appeal to those blue collar white voters because while they are shrinking inexorably as a share of the vote, pretty much two points over each presidential election, they are still disproportionately represented in those Rust Belt states from my blue wall that Trump tipped, Wisconsin, Michigan, Pennsylvania.

And until Democrats can win the Sun Belt states that reflect the diversity of modern America more regularly than they do -- I'm thinking about North Carolina and Georgia and Arizona and Florida and Texas -- until they can do that, they still have to win some of those Rust Belt states, which is why it was conspicuous that Biden did not make a bigger economic argument to those blue collar voters this past week.

SMERCONISH: I thought the same thing and I thought that, as I evidenced in the two slides that I showed from the convention, when they represented the 21st Century version Norman Rockwell of America, you didn't see a lot of the voters that you just made reference to. Hey, Ron, it's a great piece.

BROWNSTEIN: Yes.

SMERCONISH: I hope that people will read it because your analysis and the data are a wonderful snapshot. Thank you.

BROWNSTEIN: Thanks, Michael.

SMERCONISH: What are your thoughts? Tweet me @Smerconish or go to my Facebook page. I'll read some responses in real time during the course of the program. From Twitter, what do we have? Here it comes. "It was a very good speech, but it was read off a teleprompter. Not really a test of his cognitive abilities. That will come in the debates."

I don't want to be repetitive. I thought that it was brilliant to put the 13-year-old in the 10 o'clock hour. Think about this. Eight hours of programming. You know that the most eyeballs are going to be in that final hour when Joe Biden makes his acceptance speech, so of course you're going to load it up with all the star power you can and put in a 13-year-old with a stuttering affliction just as a reminder to folks that this is something that Joe Biden himself has struggled with his entire life. I mean, strategically speaking, I thought it was brilliant and Biden did deliver, prompter or not, a great set of remarks. All right. Go to my website at Smerconish.com and answer the survey question. Did Joe's acceptance speech neutralize Trump's questioning of Biden's cognitive abilities?

Up ahead, thanks to new COVID-19 outbreaks, even students who thought they'd be spending fall semester on campus are now being sent home to study online, but in many cases, the tuition bill remains the same. So they and their parents are petitioning, even suing for refunds. Do they have a case?

And did the election end this week when Wisconsin denied Kanye West a slot on its ballot? Don't laugh. Remember, Trump only beat Hillary Clinton there by 22,000 votes while alternative candidates Gary Johnson and Jill Stein between them amassed over 137,000. Showing how important Wisconsin is, the President just tweeted about the state this morning, attacking Biden for not visiting Milwaukee.

[09:15:00]

(COMMERCIAL BREAK)

SMERCONISH: Will a discrepancy over timing make or break the Wisconsin vote and potentially the general election? Hear me out on this. Wisconsin election officials voted to keep rapper Kanye West off the general election presidential ballot, claiming his campaign filed the paperwork late.

Wisconsin state law says candidates must file nomination papers not later, quote-unquote, "than 5 P.M.," but West's campaign argues that would technically mean they should have all those seconds between five and before the clock strikes 5:01.

A "WISN" reporter captured video of a West campaign attorney running into the Wisconsin election commission building at about 14 seconds after 5 P.M.. This was a few minutes after she arrived and called staff to let her in because the building was locked due to the pandemic.

She then had to ride the elevator to the third floor to deliver the papers. Election staff noted that would be virtually impossible to do in the 46 seconds needed to hit 5:01. So in a 5-1 vote, the elections committee found that even under the West campaign interpretation of the deadline, they were late.

Last night, Kanye West tweeted, "Praise God. Look at all the ballots we're on," citing Oklahoma, Arkansas, Vermont, West Virginia, Colorado, Iowa, Utah, Minnesota, Tennessee, Virginia. Why should we care that he's not on the Wisconsin ballot? Well, it's not that Kanye West's campaign ever had a shot on its own, but it did have a legitimate chance at siphoning votes away from Joe Biden.

Wisconsin is one of the most likely contests to determine who wins the election and in 2016, third party candidates doomed Hillary Clinton to a razor thin loss. [09:20:02]

Trump only beat Hillary Clinton there by about 22,000 votes, while alternative candidates Gary Johnson and Jill Stein between them received more than 137,000 votes. This year, Trump could be hard- pressed to win Wisconsin again without enough other choices on the ballot.

Joining me now is Briana Reilly, the state government and politics reporter for "The Capital Times." Briana, I've watched a variety of the videos that show the delivery of the petitions and we lifted from one of them a still image where some unknown, at least to me, individual is looking at his watch. It says 4:57 and with its tail lights on is the car from which the women emerge with Kanye's petitions. What do we know about this? Because it seems like they'd arrived on time.

BRIANA REILLY, STATE GOVERNMENT AND POLITICS REPORTER, THE CAPITAL TIMES: That's right, but under state statute, as you said before, the deadline for filing the nomination papers themselves is 5 P.M.. So then the question becomes, as the commission debated this week, what does 5 P.M. actually mean and what does the process of turning over the papers actually look like? Who was in possession of these documents when?

The video that you cited is especially interesting. The two Kanye West representatives pulled up. They called the commission to notify them that they were on site. It took them a couple minutes before they left their vehicle. I believe that same video shows the individual looking at his wristwatch again at 4:59 P.M. when the two representatives started approaching the building.

So they were let in by staff and as you said, they made the long walk to the elevator, they rode up to the third floor and they were in the commission office, but then they still had to take a couple of minutes to number the nomination papers before officially submitting them which, under the commission's determination, although there is no official Wisconsin election commission timepiece, put them well after 5 P.M..

SMERCONISH: Listen, I'm one of these OCD types who lives by the mantra that if you're not early, you're late. So I can't understand why they didn't get there at, say, 4 o'clock, but it really does seem to be splitting hairs to say well, Kanye, you were one minute late with your petition and therefore you don't get on the ballot. Was it a partisan process in the end, the decision that was made?

REILLY: That's a great question. So the elections commission itself, there's non-partisan staff that work on the actual day-to-day process of administering elections, but the decision-making body is split three to three among Democratic and Republican appointees. Despite that reality, all five members, so all three Democrats and two Republican members of the commission, voted to keep Kanye West off the ballot. Only one Republican member voted against that and wanted to allow him ballot access. SMERCONISH: Briana, do we know who's doing the leg work? I mean, I remember from years ago experience of the difficulty of going out, getting signatures and so forth. It takes a lot and I can't imagine that Kanye West has a political organization in Wisconsin. I guess my real question is do you see evidence that it's really the Trump campaign that's providing him with all of the legwork?

REILLY: That is a highly discussed question here in Wisconsin. What we do know for certain is that one of the representatives who turned in the nomination paperwork on August 4th after 5 P.M. was Lane Ruhland who is a former attorney with Republican attorney general Brad Schimel. She has also worked with the state Republican party of Wisconsin. So she does have ties to the state Republican party.

Some of the electors also for Kanye West's campaign have social media ties to the President. They've, you know, sent out tweets supporting him in the past or other posts. So there is evidence of overlap between, you know, Republican interests and backers of Kanye West's campaign in Wisconsin.

SMERCONISH: Final question, is this a done deal that he won't get on the ballot or is there an appellate opportunity?

REILLY: We're still looking at that. This is one of the closest calls I think commissioners have seen. That was acknowledged by one of the Republican members, Dean Knudson, who voted to deny Kanye West ballot access.

He said, you know, usually they call ball and -- balls and strikes at the commission, but this time it was a -- it was a line call. It was a very, very, very close call. The West campaign does have the opportunity to appeal and I do want to note the commission also deadlocked 3-3 denying ballot access to another candidate, a Green Party candidate.

[09:25:00]

And as we recall from 2016, the Green Party did siphon votes, you know, from the Democratic candidate in the race, Hillary Clinton. So both of those are situations that could go before court for appeal and then we could have a different ballgame in the state (ph).

SMERCONISH: Briana, well done. Thank you so much.

REILLY: Thank you.

SMERCONISH: Let's see what you're all saying on my Smerconish Twitter and Facebook pages. This comes from Facebook. "Is Kanye really going to draw enough votes to make a difference?" Well, Julie, you just heard the Jill Stein total -- this is really important. The Jill Stein total in Wisconsin alone trumped, pun intended, was greater than the margin by which Donald Trump beat Hillary Clinton and if you throw in Gary Johnson, then it's like 137,000 votes versus 22,000 that was the margin.

I am -- I am not someone who believes you can just automatically say, well, that would have been a vote for this candidate in the absence of Jill Stein or Gary or, in this case, Kanye West, but it's a game of inches or at least it was in Wisconsin. So arguably, it does matter. I hope that you're all voting at my website at Smerconish.com this hour. Here's the question. Did Joe Biden's acceptance speech neutralize Donald Trump's questioning of Biden's cognitive abilities?

Up ahead, after one week of classes, students at the University of North Carolina were given these fall move-out instructions following a COVID-19 outbreak. Their families, like many around the country, are wondering why they're still expected to pay full freight for learning by what some call "glorified Skype."

And George Floyd's death while in police custody horrified the world. It also launched a movement, but the attorney for one of the officers involved claims the person legally responsible for George Floyd's death was George Floyd. I'll ask why.

(COMMERCIAL BREAK)

[09:31:21]

SMERCONISH: Is online learning worth the same as in-person? Students and their families footing the bill, they don't think so.

This fall, the pandemic has forced many colleges and universities to switch to online learning. As of this week, less than a quarter of the nation's 5,000 colleges were committed to providing instruction primarily or completely in person. But most of them are still charging the same tuition as face-to-face on-campus experience. And families calling it glorified Skype are rebelling.

At Rutgers University, more than 31,000 have signed a petition calling for an elimination of fees and a 20 percent tuition cut. A similar petition at Michigan State reads in part, "These online classes hold a far less value compared to those that were once in a classroom."

For their part, many universities argue that creating these new systems are more costly at a time when higher education is already struggling. But there was already a brewing war against the high cost of a bachelor's degree so how will this end?

Joining me now to discuss is Scott Galloway, professor of marketing at NYU's Stern School of Business. Professor Galloway, how do we determine the market value of an online education?

SCOTT GALLOWAY, PROFESSOR OF MARKETING, NYU STERN SCHOOL OF BUSINESS: I think the market is telling us right now that we've priced ourselves well beyond the value and then when you take the experience out, you got all remote learning effectively what you have is a streaming video service that costs $58,000 a year.

So, this was -- you know, COVID-19 is more of an accelerant than a change agent. It's likely that prices had increased beyond their true value a while ago and this has just really brought the issue to the fore. But we're seeing an absolute destruction in demand which should result in much lower prices. SMERCONISH: I just wonder if the market can determine the value on its own, because students who have already accepted an invitation to come in and study or are already enrolled, it's kind of hard to change midstream and say I don't think I'm getting full value here, therefore, I'm going to transfer or go elsewhere?

GALLOWAY: Well, there's certainly a cartel whose job is to make it very difficult for any sort of price discovery. For example, they're not letting students or many universities are not letting students to defer so they don't have many options. There's a general notion through the process that if you give up you may not get back in. So, it's sort of a -- there's what I'll call non-economic switching costs that the universities have been very good to implement.

Imagine if you had paid for a cruise and couldn't take that cruise because the virus had changed the likelihood that ship was going to sail, and the university refusing to give you a refund or the university even refusing to discuss price decreases. There's a level of arrogance and self-aggrandizement that has been built up over the last four or five decades where universities feel that they're immune from market forces.

And unfortunately I just think it makes -- it's kind of -- they have stuck their chin out more. I think the distraction is going to be much greater here than if they had just cut prices and gone all remote earlier.

SMERCONISH: You said that COVID-19 will act as an accelerant. Are we about to witness a great winnowing process?

GALLOWAY: Absolutely. So, if Harvard has 20 percent of their incoming freshmen to defer and it's arguably the best brand in education what you're going to see is demand instruction that it goes and greater and greater as you kind of move down the prestige cycle. And at the end of the day what kids are paying for and their families is the certification of the brand.

So, the tier one at Harvard is fine because it can go into its waiting list but the tier two has not only less demand because people show up but fewer show up because they get off the waiting list in those tier one. They're fine. They can go into their waiting list. And then you go to the tier three that has huge demand instruction but they go into their waiting list.

[09:35:02]

But the thing is, Michael, they don't have waiting lists. And the cost structure is such that the fixed costs are so high at these universities that just a 10 or 20 percent reduction in demand could effectively, effectively set 100 to maybe 1,000 universities on a death march with department stores or the retail tier three universities are about to become the education.

SMERCONISH: There's a tendency, I'll speak for myself, to look at this dynamic and to say, well, these colleges and universities are greedy in not cutting tuition. That was what I thought before I read in. When I read in, I realized that they've got escalating costs which is counterintuitive, right? You think, well, the students aren't physically there in many instances.

Can you speak to the issue of why the cost would be higher to deliver an online education in some circumstances?

GALLOWAY: Well, sure. There's incremental cost in terms of the embracing of small and big technology, different protocols, different training, a much bigger investment in tech. But I think your initial notion is the right one, Michael. What they fail to have the conversation around is where should you be cutting cost?

My course is typically 160 kids in the fall. I kick it off in three weeks. It will be all remote. But because it's all remote, they've removed the cap and I'm not teaching 280 students. So, technically there should be some cost savings there.

So, yes, there are some incremental costs increases but there have been incremental cost increases in terms of the reduction in accountability and increase in compensation and an explosion in administrative load. So, we need to have an open and honest conversation as every sector is having whether it's furloughing employees, whether it's laying off employees, whether it's cutting costs. Universities should not be exempt from the same economic pressures as every middleclass household and every businesses right now. They need to cut costs.

SMERCONISH: Final question, what's the value of Scott Galloway live and in person at NYU versus getting you remotely?

GALLOWAY: It's less remotely. And, quite frankly, it may be worth it, though.

When I started 20 years ago, the class looks, felt, and smell pretty much the same as it does today. The difference is it was $2,200, now it's $7,000. So, the question is whether or not it's going to be less. It will be less. The question I think we should be asking ourselves, Michael, is there an opportunity to embrace small and big tech and give kids 80 to 90 percent of the in-person class for 20 or 30 percent of the price? It is time that universities went back to being an upward lubricant of great -- of mobility for middleclass households and that involves a dramatic increase in price and a dramatic increase in freshman seats. We can get there.

SMERCONISH: You know, I was thinking, professor, in listening to you that there might be a winnowing process and some may fall by the wayside. But this may also be opportunity for those schools that figure out how to do it right.

How can they produce a Scott Galloway caliber instruction and do it at a reduced cost and for them there's going to be a great market niche? You get the final word.

GALLOWAY: There's a silver lining the size of a cloud here and that is to take two-thirds of the students (INAUDIBLE) and dramatically expand (INAUDIBLE) classes go online, which they could, you effectively double the size of campuses. It's time to go back to where universities dramatically expand their enrollments, dramatically increase their prices and become a source of upward mobility.

SMERCONISH: Professor, thank you as always.

GALLOWAY: Thank you, Michael.

SMERCONISH: I want to remind everybody to answer the survey question at Smerconish.com this hour. "Did Joe Biden's acceptance speech neutralize Donald Trump's questioning of Biden's cognitive abilities?"

Still to come, the video of the death of George Floyd shocked the world and launched a movement. But the attorney for one of the four cops charged says, George Floyd -- quote -- "killed himself." He's here to explain.

(COMMERCIAL BREAK)

[09:43:04]

SMERCONISH: The world court of public opinion has already concluded that police officers killed George Floyd. But according to the attorney for one of the former police officers involved, the individual legally responsible was George Floyd himself.

A warning in advance, we're going to watch some of the video from the arrest scene which some viewers may find disturbing. Video seen around the world showed Floyd pinned under the knee of Minneapolis police officer Derek Chauvin pleading, I can't breathe, and then going limp.

And independent autopsy conducted by experts hired by Floyd's family and an initial report from the Hennepin County medical examiner both listed the manner of death as homicide. Chauvin was charged with second degree murder, third degree murder and manslaughter, and three other officers on the scene, Thomas Lane, Alexander Kueng and Tou Thao have been charged with aiding and abetting second degree murder and aiding and abetting manslaughter. All four have been fired, three released on bail, Chauvin remains in custody.

Attorney Earl Gray, representing Officer Thomas Lane, said his defense will be that George Floyd killed himself. Earl Gray joins me now to discuss. Counselor, thank you for being here. Would George Floyd have died that day without officer Chauvin's knee on his neck?

EARL GRAY, ATTORNEY FOR THOMAS LANE, OFFICER CHARGED IN GEORGE FLOYD'S DEATH: Yes, we believe that he would have died in any event. And that's based on his fentanyl in his system and also the body camera, close-up pictures of his conduct when my client approached his vehicle.

SMERCONISH: But you take --

GRAY: The pictures show -- go ahead.

SMERCONISH: I was going to say, you take the victim as you find him, right? I mean, perhaps he had an underlying condition, but if the restraint is what killed him, that would defeat your defense, true?

[09:45:05]

GRAY: That would be true. But the restraint did not kill him. We've had many pathologists, medical examiners around the world actually email us and tell us what they believe the cause of death would be, ranging from the COVID that he had just gotten over to the drug amount in his system to excited delirium. All kinds of other areas that he would -- all kinds of reasons for him to have died.

The key here is the amount of fentanyl he had in his system which was 11 nanograms which will be three times the amount that an ordinary person would have to die. Three nanograms can kill you, he had 11. And if you look at the body camera closely and the close-ups that we submitted in our second memorandum, you will see that there's a white substance on the back of his tongue. He turns his head to the right. He looks back and the substance is gone. And our position is that white substance was the fentanyl on him.

In addition to that, we cite in our second memorandum that he did the same thing a year before this. And at that time, though, he told the officers that he was under the influence of drugs. And he had just taken some drugs.

So, instead of doing what the officers did here because Officer Lane asked him, are you on something? And Mr. Floyd said, no. I'm hooping. Well, hooping means playing basketball, at least most people believe that.

So, he denied being on the drugs. The year before, he admitted it. They took him to the hospital where he stayed. This time, they didn't. I hear a buzzing --

SMERCONISH: I understand -- I understand -- I understand the nature of your causation defense. Is it nonetheless not a very tall order for you to essentially say to a jury that it's a coincidence that we're watching nine minutes of Chauvin's knee on his neck and his expiration?

GRAY: Well, first of all, it wasn't nine minutes on his neck. We have also other experts that will look at that photo and say, no, his knee was not on his neck to the point where he would be asphyxiated. Also, in the training manual, there's a photo of when somebody is arrested how to hold him, it was this photo of somebody with his knee --

SMERCONISH: I'm going to put that on the screen. Yes, I didn't mean to interrupt you but I want to put that on the screen because I do find that rather remarkable. This is from the training manual, correct?

GRAY: That's correct. (INAUDIBLE). It's Exhibit 7 in our (INAUDIBLE).

SMERCONISH: So, is your defense not only causation, but also that Officer Chauvin, as inappropriate as we lay people may believe that to have been was actually following police protocol?

GRAY: Yes, absolutely. And in addition to that defense, and I know you are a lawyer, we have the defense that Officer Lane does, and Officer Kueng, that they did not willfully participate in any conduct of Chauvin's because they have no knowledge -- if he did, which we believe he didn't, we had no knowledge that he was committing a third degree assault. We thought, and Officer Lane will tell you that he believed that Officer Chauvin was using reasonable force to hold a person until the ambulance arrives. That's what is lost here also.

The video that was shown first was just and the body camera video that I submitted to the court and it then became public record, the body camera shows the resistance of George Floyd from the start until the end. And the statements in his -- in the police vehicle that he could not breathe. He started saying that in the police vehicle when they were trying to get him in the vehicle. So the --

SMERCONISH: In other words, I know -- I know from -- I watched all 37 minutes. Six or seven times before he's put in, he says I can't breathe. I'm limited on time. I want to ask you, finally, briefly the most important question, are you going to be able to find --

GRAY: Yes.

SMERCONISH: -- a jury willing to listen to what you've just explained here?

[09:50:00]

GRAY: I hope so but of course we know the problem and also the problem is all of these politicians, you hear Biden, Mrs. Obama all saying that he was murdered, that George King (ph) was murdered. And they're all lawyers. They should know and they should realize that they should not say things like that because there is no conviction, there is a charge, and we believe the charge is even faulty.

But finding the jury on this case, I think once we get done with our preparation and we get a change of venue to a different area than Minneapolis, and of course, in Minneapolis jurors would be afraid that if they found they're not guilty that their city would burn down. But if we get it out of Minneapolis and get a fair jury, which I believe we can, we've had these types of cases before, I think we can get a fair jury and I think that the verdict would be not guilty, at least on my client (ph). I won't --

(CROSSTALK)

SMERCONISH: To be continued. Mr. Gray, thank you. I wish I had more time. I am intrigued by all of these issues.

GRAY: OK.

SMERCONISH: By the way, Thao and Lane have asked the cases against them be dismissed. Kueng's attorney says that his client intends to plead not guilty.

Still to come, your best and worst tweets and Facebook comments. And we'll give you the final result of the survey question from my Web site. You can still go vote right now at Smerconish.com. "Did Joe Biden's acceptance speech neutralize Donald Trump's questioning of Biden's cognitive abilities?"

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[09:55:47]

SMERCONISH: Time to see how you responded to the survey question at Smerconish.com.

"Did Joe Biden's acceptance speech neutralize Donald Trump's questioning of Biden's cognitive abilities?"

Survey says, 84 percent yes of a whopping 20,000 plus who've already voted. I'll leave that question up on Smerconish.com for the weekend.

We're out of time. See you next week.

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