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Smerconish

Video Shows Initial Confrontation, Traffic Stop with Memphis Police and Tyre Nichols; Did Lawyer Alex Murdaugh Kill His Wife And Son?; Officers Charged With Second-Degree Murder In Tyre Nichols' Death. Aired 9-10a ET

Aired January 28, 2023 - 09:00   ET

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

(COMMERCIAL BREAK)

[09:00:46]

MICHAEL SMERCONISH, CNN ANCHOR: Heinous, reckless and inhumane. I'm Michael Smerconish in Philadelphia. Those were the words of the Memphis Police Chief, describing the video of Tyre Nichols being beaten on January 7 by members of her own police department. And now that the rest of us have seen it, nobody can dispute that characterization. And Tyre Nichols died from those injuries three days later. But was it second degree murder as state law defines it?

Let's go to the video. I of course warn you the clips are difficult. They're disturbing to watch. There's a lot of foul language. First, we saw an officer arriving at the scene and the situation rapidly escalating.

(BEGIN VIDEO CLIP)

TYRE NICHOLS: Damn, I didn't do anything.

POLICE: Turning your ass ground.

NICHOLS: All right, all right, all right. I'm on the ground.

(OFF-MIC)

NICHOLS: You don't do that, OK?

POLICE: Get on the fucking ground. Get on the ground.

(OFF-MIC)

NICHOLS: All right. I'm on the ground.

POLICE: Right now. Right now.

POLICE: On the ground.

NICHOLS: OK.

POLICE: I'm going to tase you. Now get on the ground. (OFF-MIC)

NICHOLS: You guys are really doing a lot right now.

(END VIDEO CLIP)

SMERCONISH: Nichols runs away. He soon caught nearby. In the next body cam clip he cries out for his mother while he's being beaten again. It's very disturbing.

(BEGIN VIDEO CLIP)

(OFF-MIC)

NICHOLS: Mom.

(END VIDEO CLIP)

SMERCONISH: It was a surveillance camera on a light pole that gave the clearest and most chilling picture of the encounter. The video appears to show Nichols being hit, kicked, punched, hit with the baton multiple times in less than four minutes.

No one appears to render any aid. The ambulance will not arrive for more than 20 minutes, almost as reprehensible as the baton blows and the kicks to the head was the delay in getting him to medical treatment that he needed. Roughly 23 minutes passed between when Nichols appear to be subdued after the beating until the stretcher arrived on the scene.

All this led to charges of second-degree murder and more against these five Memphis, now former Memphis police officers. Last night, I tweeted my instant analysis as an attorney. I correctly predicted how it would be received. I said the following, gut reaction, many won't want to hear having watched and before hearing anyone else's opinion. It was hard to watch. Tragic. Sad. Unnecessary. Excessive? Yes! But deserving of second degree murder knowing killing another, based only on what I've just seen? No.

If my thumbs failed me, it's that I didn't make a clear legal distinction that I was seeking. What I was saying is this. I wasn't saying that they hadn't killed Tyre Nichols. Sadly, they did. I was trying to say their actions seen on tape might not fit the legal standard for second degree murder. And once again, Twitter proves to be a place lacking in any nuance. Here are just a handful of the responses I received. Christ, you're a monster. F all the way off. You're blind. Get some new glasses. Long time listener. This seems like a plea for clicks rather than objective analysis. Sad. No, this is what objective analysis looks like. Would you say the same thing if it was your son or daughter? Bro, you shouldn't have tweeted after that fifth glass of wine. This won't age well. And please don't say this tomorrow on your show. Please. And simply this, idiot.

But in the pack there were also a few who seemed to understand the legal not moral point that I was trying to make. For instance, "They probably didn't set out to kill him. But there's no way they didn't know that he might die from such a beating. OK. Now, at least we're having a conversation.

[09:05:05]

And there was this, when they hunted him down, they took turns beating him, they committed manslaughter. Well, yes. But that's not the same as second degree murder, which is the charge that he's facing or that they're facing.

According to Tennessee State law, second degree murder is classified as a knowing killing of another. And it goes on to enumerate in a prosecution for a violation of this section, if the defendant knowingly engages in multiple incidents of domestic abuse, assault or the infliction of bodily injury against a single victim, the trier of fact may infer that the defendant was aware that the cumulative effect of the conduct was reasonably certain to result in the death of the victim, regardless of whether any single incident would have resulted in the death.

As the local paper, the Memphis Commercial Appeal is -- has explained, "Second-degree murder in Tennessee is below first-degree murder, considered an intentional and planned murder. That's first-degree, but more serious than voluntary manslaughter. That's murder committed in the heat of passion."

So, here's the legal situation. Did the officers show despicable, willful disregard for the safety of a fellow human being? I think they did. Did he die of these injuries? Sadly, that seems pretty clear. But were they reasonably certain he would die from this attack? Or was it in the heat of the passion, i.e., manslaughter? That remains for the courts to decide.

I want to know what you think? A little nuanced legalese question @smerconish.com. Vote on this week's poll issue. Did the Tyre Nichols video show the "knowing killing of another?"

Joining me now, CNN's Senior Legal Analyst Elie Honig. He's a former federal and state prosecutor who worked for as a prosecutor for 14 years, including on cases of murder and other violent crimes. Elie, I think you get what I'm trying to say. Was it heinous, reckless, and inhumane? Hell yes. But do you see in those tapes, five individuals knowingly engaged in a killing?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: So, Michael, I do not believe that prosecutors have overcharged this case. I think this charge falls within a fairly broad range of discretion that we give to prosecutors. I do think it's an aggressive charge on the second-degree murder here. And here's why, as you said, in order to prove second degree murder under Tennessee law, you have to prove a knowing killing of another person. And what prosecutors ultimately will have to prove to a jury is that it was reasonably certain to each of these officers that their actions would result in the death of Mr. Nichols.

Now, this is a really important point, Michael. I want to make sure people understand this. The jury in this case will not return a verdict. They will return 35 verdicts. Because we have five defendants here, charged with seven counts each, the second-degree murder being the top count. So that jury is going to have to go defend it by defendant, assess their acts, and decide whether this person is act knowingly aimed at and done with a reasonable certainty that they would result in the death of this person. We could have different results as to each defendant. We could have different results as to each count.

SMERCONISH: I was going to say, Elie, that there's no guarantee that there will be one trial. I can imagine these defense lawyers wanting to parcel each of these cases, and perhaps pointing a finger in a different direction. In broad strokes, then, OK, just thinking about this as a composite. The prosecution is going to say, what? The prosecution is going to say that they did knowingly engage in such conduct, those baton blows are going to become key, the video taken from the light pole is going to be most important. And also, the kicks to the head. The defense, it seems to me is going to be stressing, just give us your hands, just give us your hands, just give us your hands, all the way through, all four videos and say, he resisted. You know, in that fourth tape, there was some claim that maybe he was high. And we also heard some information about him potentially reaching for someone's gun. What else stood out for you in terms of the basic points?

HONIG: Well, so I think the prosecutors are going to say simply, this was a savage beating. They had to have known. When you have a person restrained, essentially, whether by handcuffs or by being held up, as we see in the video, and you strike him in the face, four to five times in rapid succession, something like nine times total, of course, it is reasonably certain that you will kill that guy. That will be the crux of the prosecution's argument here.

The defense I think will make some combination of arguments along the lines. So, there was some justification, some need for force. I'm not sure that's exactly borne out by the video. But I also think the defense is going to say, you have to look at each of these individuals separately, and you have to parse out what each of them did. And then you have -- I think the defense is going to argue that perhaps, I mean, they're not going to concede it this way. But perhaps this is an aggravated assault. Perhaps this might have been manslaughter. But to get to that point of murder, what -- by doing what they did was reasonably certain. They were going to cause the death of this individual.

And let's keep in mind, Michael, prosecution always has to prove its case beyond a reasonable doubt. It's a mistake to assume that any case is going to be easy especially a case like this, especially a police case. I think we're going to have a very hotly contested trial.

[09:10:12]

SMERCONISH: OK, I will -- I will use your word. It was an aggressive charge that was brought against them, no one at home should misunderstand what I'm saying, heinous, reckless, and inhumane? Absolutely. I'm just trying to figure out if they're going to be able to prove that which they've charged in this case. Something else that's really important, and equally appalling. The delay, holy crap at the end, these guys, it's like there's a locker room, right? And they're talking about a game they just played. And no one is doing anything for the now deceased. What are the legal consequences of the delay?

HONIG: Yeah. So, the theory here is failure to render aid, or failure to render medical aid. Now, this is a really important point, legally, because this is a sort of new development that we're seeing in some of these police cases. We saw in the Derek Chauvin trial, in the killing of George Floyd. The theory around all of those officers is that, in addition to causing George Floyd's death, they failed to render medical aid, and therefore causes death. Now, that was a fairly novel legal theory at the time, but the jury accepted it. And now we're starting to see that kind of theory brought to bear more often. In this case, it's actually the basis for some of the lesser charges in this case, still significant, but lesser charges, the official misconduct charge, and the official omission charge, as we call it, if you look further down the charges here.

And so the theory is, by standing around doing nothing, first of all, I think I would argue as a prosecutor that tells you something about their mindset, their intent, they didn't care what happened to him. But also, that's a crime in and of itself. And we're seeing prosecutors use that kind of theory much more aggressively and charging police officers, and with some success.

SMERCONISH: Bottom line, do you expect there to be more charges?

HONIG: I don't expect there to be more charges. I don't think there's a first-degree charge to be had here. As you said, that requires an intentional and premeditated killing. Prosecutors plainly must have considered that charge. But I don't think the proof is there. I think they've charged this as aggressively as they can charge it. I'm all in favor of charging aggressively. That's what I used to do as a prosecutor, Michael. But the risk is, if a jury thinks you have overcharge, that can actually backfire, because that can compromise your credibility. But the prosecutors really took an aggressive approach here. I think it was warranted. But I do not think it's a safe assumption to think everyone's going to get convicted across the board, and that's that.

SMERCONISH: Elie Honig, thank you so much for being here, really appreciate it.

HONIG: Thank you. All right, Michael.

SMERCONISH: So, now to the response of police departments across the country, joining me now is Laura Cole. She's President and Founder of Cole Pro Media, a crisis communications PR firm that specializes in police work. So, Laura, what advice do you have for police departments around the country? Should they be saying anything about this case, trying to distinguish themselves from what just went on, so that they don't lose credibility in their own communities?

LAURA COLE, PRESIDENT & FOUNDER, COLE PRO MEDIA/ ADVISES POLICE DEPARTMENT: So, I just want to start off by acknowledging and giving condolences to Mr. Nichols family and to all who love him and care about him. Yes, they absolutely need to be acknowledging what just happened. And I have talked with dozens of police chiefs and sheriffs across the country who all say they are outraged and appalled by what they saw on that video. In fact, one sheriff said, these aren't police officers. These are savages and they have no business being in our profession.

I talked with a major city police chief who said, "Here we are, again, and we did it to ourselves. This is an embarrassment." And so right now, it's very important that they are getting on the phone with their local leaders, talking with pastors in their community. The local chapters of the NAACP, and saying, hey, what are you hearing? How are people feeling? Our lines of communication, we are open. We are here to listen. We are here to talk. We want people to know that this does not represent all of us. These are these select few that should not be in the profession. And thankfully, they have been fired.

SMERCONISH: The Nichols family lawyers yesterday said they want to hear in particular from the Fraternal Order of Police. If the FOP, either as a national organization or one of their chapters were to call you, give me the short version. What does the statement say that they should be releasing?

COLE: That they're outraged, that they're appalled, that they're disgusted just like everybody else. Because all of us are. And if you aren't, you should be. And that they are going to do whatever they can to continue to push reforms that will stop this from happening within the police culture.

SMERCONISH: Have you seen evidence of any departments saying that yet and I recognize that this is all happening very quickly. The tape was only released last night?

COLE: Yes, we're starting to see police chiefs from across the country and sheriff's offices saying, this is horrific. This would never have happened. We are here and we are going to continue to communicate with you and do our best to continue to build trust within our communities after what has taken place. They are just as upset as the rest of the community is at this point. They realize it makes them more horrible.

[09:15:19]

SMERCONISH: Thank you so much, appreciate your expertise.

What are your thoughts? Tweet me @smerconish, go to my YouTube or Facebook pages, hit me up on social media. You know that I try to incorporate some during the course of the program. What do we have? The murder charges needed to keep peace, a plea bargain to manslaughter will put them in jail a long time and their lives and hopefully make every police department evaluate their staffs.

Bill Snyder, I think that there's merit in what you're saying. I mean, I thank God, last night was a mostly peaceful night in terms of the protests. And in particular in Memphis. If there had not been charges with the M word, the murder word, would that have been the case last night? I don't know the answer to that question. Was that part of, I'm going to use Elie's word, the aggressive nature of the charges that were brought? Maybe it was. And if so, then perhaps it was successful. But whether that's where the case ends up, I'm not sure.

Remember, I want to know what you think. Go to the website, it's smerconish.com. Yeah, it's a legal question. It's a legal question. It was a horrible, inhumane event that transpired. I incorporate everything that the police chief said. I'm asking this, did that video show and now I'm quoting from Tennessee law, the knowing killing of another. Go and vote @smerconish.com. The results will come later in the hour.

Up ahead, the killing of George Floyd at the hands of police seemed at the time to be a watershed moment about excessive use of force. So, why are we still seeing needless escalations like Tyre Nichols traffic stop, which ended with yet another tragic death? And the murder trial started this week in the case of the disbarred, South Carolina lawyer, Alex Murdaugh, for fatally shooting his wife and son on the family estate in June of 2021. We're going to get the latest from a reporter who's been in the courtroom, and has been covering the tangled case from the beginning.

(COMMERCIAL BREAK)

[09:21:02]

SMERCONISH: The tragic death of Tyre Nichols after a beating by now five former Memphis police officers again raises questions about the police use of force. After the murder of George Floyd, the House passed the George Floyd justice in Policing Act of 2021. It would have established a national standard for police use of force and overhauled immunity protections for officers. But the bill never made it out of the Senate. So, today there are still no national standards for Americans roughly 18,000 Police Departments. Given the recent focus on such cases, how is it that none of the officers involved in the Tyre Nichols encounter, had the presence of mind to de-escalate?

Joining me now is Timothy Williams, Jr. former LAPD detective. He spent nearly 30 years on the force served as the president of its Black Law Enforcement Association. He's provided expert testimony regarding police procedures and use of force and more than 200 cases mostly for the plaintiffs against police departments. He's also the author of the book, "A Deep Dive: An Expert Analysis of Police Procedure, Use of Force, and Wrongful Convictions."

Mr. Williams, thank you so much for being here. "You run, you pay," is that what went on here? Is that an unspoken or spoken edict among cops?

TIMOTHY WILLIAMS JR., FORMER LAPD DETECTIVE/EXPERT, POLICE PROCEDURE & USE OF FORCE: That's an unspoken and spoken edict among law enforcement nationwide. And thank you for having me on. The culture in law enforcement is that, you know, you -- if we have to chase you, then you're going to pay for that. And normally the payment is a beating. What you saw there, in Memphis, Tennessee, is the indication of what goes on in the communities of color, if you have to chase someone. And that's the result of that.

SMERCONISH: Give us your hands. Give us your hands. Give us your hands. Why did they have such difficulty? Especially because there were so many of them in restraining this individual?

WILLIAMS: Well, you know, I'm not an academia. I've been -- I'm a practitioner, I've been in the field.

SMERCONISH: Right.

WILLIAMS: And, you know, five officers out there, five plus officers out there. And these were burly men. If a burly -- if these guys couldn't turn him over, get him handcuffed there, they're in the wrong profession. It was easy to get him to turn over, get them handcuffed, sit him up and be done with it. The tasing was excessive. The tasing him down and beating them, kicking him, punching him, hitting him with the metal ass baton was excessive. And that's not how you train. That's not how you train in the academy. And I have handled cases nationwide. And these are the issues that come up from time to time in the cases that I've handled as relates to excessive force.

SMERCONISH: When you saw toward the end of the tapes, that fourth tape, when now the situation was resolved as the wrong word because a man paid with his life for it, but where the individual that they were chasing was subdued. And as I said to my previous guest, it was almost like locker room conversation where you had athletes talking about the game after it ended. Talk to me about why no one took any action to render aid to make sure that paramedics were on the scene. I mean, isn't that part of the police protocol? You might be physical with somebody, but for God's sakes, you then try and save their life?

WILLIAMS: Yeah, that's the protocols nationwide. If a person has been physically restrained or you've been altercation with him or her, the policy state that you have to render aid immediately, even though if it's a shooting, you have to render aid immediately. That's normally done by the officers at the scene until the first -- until the Fire Department gets there, and medics get there. And then they take over here.

[09:25:13]

Here, again, you have to look at the policy and procedures, but in this particular situation, there was a bleed was a 20-minute delay, getting the medics to the scene, and you got to listen to communications as to why that was, did they immediately ask for the paramedics to come? Was there a delay due to the calls for service as to why the paramedics didn't get there? All those things come into play. But immediate first aid is important, and is written in the policies and procedures. But if, you know, if everything was supposed to be, and they waited at least a time to call the paramedics, and they violated policy and procedure on that task on that aspect as well.

SMERCONISH: Mr. Williams, thank you for your expertise. I'm sure that part of the case is going to get a lot more attention as it should. Thank you, sir.

WILLIAMS: Thank you for having me.

SMERCONISH: More social media reaction. Catherine, what do we have? I know a lot of things being submitted today. Smerconish, I see so many escalations begin when police try and get people out of the vehicle without providing cost.

Evolution, can I say something about this? I watched this with one of my sons last night. And his comment to me, you know, young adult, not young person, was, Dad, why did they chase him? Should we rethink the whole idea and especially in this case, because, you know, the car was stopped in traffic. And now, Tyre Nichols had fled on foot. Bad things seem to happen every time there's a pursuit like that. You've got the car. You're going to figure out -- I'm just spit balling here. Obviously, I lack police expertise. But I thought it was a worthy conversation. Like what would have been the harm and just saying we've got the car, we're going to figure out who this is. And instead of escalating this situation, we're just going to calm, because that whole pursuit you can just see that testosterone building, so sad.

Make sure you're voting @smerconish.com. This week, yeah, it's a legal nuanced question. Tyre Nichols died of injuries that the cops sustained on him. There's no doubt about that. It led to his death. But legally, I'm asking something about -- I'm asking something about Tennessee law. Does it fit the description of second-degree murder? And for that you need a showing that there was a knowing killing of another. That's what I'm getting at today. I hope that's not lost on folks

OK, up ahead. Alex Murdaugh on trial for the murder of his wife and son. Fourth generation of a powerful South Carolina family. Prosecutors contend that he killed them to gain public sympathy because inquiries into his finances were about to expose extensive crimes. Does that explain it?

(COMMERCIAL BREAK)

[09:32:13]

SMERCONISH: Did Alex Murdaugh kill his wife and son? That's the question facing the jury in the trial that began this week in South Carolina. Murdaugh, a prominent now disbarred lawyer, accused of fatally shooting his wife with a rifle and his son with a shotgun at the family property's dog kennel. This was the night of June 7, 2021.

The trial is taking place in the Colleton County Courthouse in the small town of Walterboro. That's about 30 miles east of the family hunting property where this occurred. Murdaugh, fourth generation of a powerful South Carolina family, who have long been lawyers and district attorneys in the surrounding five county area. For decades his grandfather's portrait hanged in the courtroom where he's now being tried. It's been removed, obviously, for these proceedings.

In opening arguments lead prosecutor Creighton Waters said the case the state is presenting is circumstantial but would still prove Murdaugh's guilt beyond a reasonable doubt. While defense lawyer Dick Harpootlian labeled the prosecutor's case illogical. The trial is expected to last several weeks with more than 250 people on the list of potential witnesses. Joining me now is Valerie Bauerlein, national reporter for the "Wall Street Journal." She has long been covering this case and has been in the courtroom each and every day. Valerie, thank you so much for being here. What is the prosecution theory as to motive?

VALERIE BAUERLEIN, REPORTER, WALL STREET JOURNAL: The prosecution says that the walls were really closing in on Alex Murdaugh that night of June 7, 2021. They say that, you know, that very day he had been confronted by the administrator in his law firm over a $792,000 missing fee that day. And his father was ill and was dying. He got a phone call that his father was dying and then next his death was imminent.

And what Alex knew that others didn't know they say is that he had been stealing from his personal injury clients for more than a decade to the tune of $8.9 million. So, he knew that if law firm started pulling the thread of that missing fee what they might find. And he also knew that his father who was the former very powerful prosecutor had been his protector for a long time. And so, these things were starting to close in on him that very day of June 7th.

SMERCONISH: What I don't get is how killing his wife and son would necessarily give him cover from the walls closing in. How about the defense theory in this case? And if you want to say something else about the prosecution theory, say it. But the defense in this case in simple terms is what?

BAUERLEIN: You just said it. They say, the defense says, how does that help him? How does killing his wife and son help, you know, ameliorate this issue of this looming financial fraud? And they also say, you know, there's just no evidence that he did that.

[09:35:00]

He was very -- he had a loving relationship, they say, with his wife and son. There's a video of them kind of laughing and talking, taken minutes before they were murdered. And they say it just doesn't make sense. Maybe all this other stuff was happening but that doesn't -- A doesn't lead to B in this case.

SMERCONISH: I want to talk about the surviving son. I'm going to put an image on the screen right now of Buster Murdaugh. And you tell me what it feels like to be in that courtroom.

He's on the side, sitting on the side of his father's defense table. Should I read something into that? Is this like a wedding where you sit on the side of bride or groom or not?

You're there. I know you're behind the prosecution because that's where the media is. But talk to me about Buster.

BAUERLEIN: You know, it is a very eerie feeling to see Buster and to walk by him in the hallway. He is this 26-year-old young man who had had so much loss in, you know, a year and a half and is really in the public eye in a devastating way, but it is an incredible show of support from the Murdaugh family. We had not seen them at hearings really to speak of, and then the very first day of opening arguments in walks Buster, in walks Alex's two brothers and his sister, and extended family. And it is an emotional kind of stunning feeling to sit there because the family is on Alex's side of the courtroom and there's no one sitting with the family that I'm aware of sitting behind the prosecution which is representing Maggie and Paul. So, it is a very -- it's very --

(CROSSTALK)

SMERCONISH: You're reading -- you're reading into this. You're reading into this that Buster is with his father, charged with killing his mother and his brother, but he's standing with dad. That's your interpretation?

BAUERLEIN: I think that's the symbolism that we're seeing here. And I'm also -- you know, I've done quite a bit of reporting on this, and that's what I'm told to be the case, that it is a show of support knowing that it is -- you know, his dad is also accused separately of a total of, you know, 99 felonies, drug trafficking, money laundering, white collar crimes. Setting that aside, he is still here to support his father kind of in this particular case.

SMERCONISH: Hey, Valerie, I have truly 20 seconds left. This is the final thing I want to say. Number one, your reporting is excellent on this. I know you're going to write a book about the case. Number two, the lawyering, I think, from a distance is excellent and totally different styles. Give me 15 seconds on the lawyering.

BAUERLEIN: Well, the lawyering, the prosecution yesterday in particular was just old-fashioned, big talking southern kind of, you know, "To Kill a Mockingbird" presence, and then the defense has been poking holes. Their theory is they need to poke holes in -- small ones in every witness and enough of those holes kind of render the fabric -- you know, tear it apart.

SMERCONISH: Yes. Harpootlian is a something to watch. He is a skilled trial lawyer. I'm not taking anything away from Waters. He's great too. Thank you, Valerie. I'll keep reading.

BAUERLEIN: Thank you.

SMERCONISH: Checking in on your tweets and YouTube and Facebook comments. What do we have?

Regarding his alleged lack of emotion at the crime scene perhaps the guy just has a cold personality. A lot of people are like that and they are not necessarily guilty of murder.

David Conte, I don't know how to read Alex Murdaugh like sitting in there in court. And I realize a lot of you, you know, haven't had the opportunity to watch it but his head -- the most graphic of testimony is presented or evidence and he's just sort of bobbing his head and you're watching it and you're saying, well, yes, I guess that's how someone whose wife and son are murdered would act. And then you say, wait a minute, is that rehearsed? Is that like central casting? I don't know. I don't know.

Still to come, the public has now been allowed to hear the 911 call and see the body cam video of when a late night home invader confronted and attacked 82-year-old Paul Pelosi. Not only does this shut down all the conspiracy theories about the incident but you've got to be impressed with how Pelosi kept his cool. I want to explain in just a moment.

And vote at Smerconish.com. It's a legal question I'm asking. Tyre Nichols he was killed by the cops, I think watching what we saw in that video. Did the video show the knowing killer of another because that is the Tennessee state law defining second-degree murder? Go vote at Smerconish.com.

(COMMERCIAL BREAK)

[09:43:26]

SMERCONISH: The more we learn about Paul Pelosi on the night that he was brutally attacked by a home invader, the more impressive becomes the picture of his response. Friday, the San Francisco Superior Court publically released his 911 call and police body cam footage, which both of had been played for the judge at the dependant's preliminary hearing. I'm hoping it will finally put the conspiracy theories to rest.

First, there's the 911 call made by Pelosi. It's on October 28th in the presence of his intruder. The totality lasts about three minutes. Here's a snippet.

(BEGIN AUDIO CLIP)

UNIDENTIFIED 911 OPERATOR: This is San Francisco police. Do you need help?

PAUL PELOSI, HUSBAND OF FORMER HOUSE SPEAKER NANCY PELOSI: Oh, well, there is a gentleman, uh, here just waiting for my wife to come back, Nancy Pelosi. Uh, he's just waiting for her to come back but she's not going to be here for days so I guess I'll have to wait.

UNIDENTIFIED 911 OPERATOR: OK. Do you need police, fire or medical for anything?

PELOSI: Uh, I don't think so. I don't think so. Uh, there's the -- is the Capitol Police around?

UNIDENTIFIED 911 OPERATOR: No. This is the San Francisco --

PELOSI: They're usually here. They're usually here at the house protecting my wife.

(END AUDIO CLIP)

SMERCONISH: Right. Stop the tape. The interaction shows Pelosi with a pretty amazing presence of mind. The guy's an octogenarian. He's been startled awake in the middle of the night after somebody smashes the glass on his back door with a hammer and he's now confronting him. That intruder is wanting to know the whereabouts of his wife.

[09:45:08]

So, Paul Pelosi speaks calmly and in code to the dispatcher. His words -- if you listen carefully, they contain a number of clever tells compensating for the fact that he can't just say, hey, I'm the husband of the Speaker of the House and I have got a strange guy in my home with a hammer and I need help. So, instead here's what happened.

(BEGIN AUDIO CLIP)

UNIDENTIFIED 911 OPERATOR: Do you know who the person is?

PELOSI: No, I don't know who he is. He has told me not to do anything.

UNIDENTIFIED 911 OPERATOR: What is your address, sir? What is your name?

PELOSI: My name is Paul Pelosi. Anyway, this gentleman says that -- he's telling me to put the phone down and just do what he says. OK?

UNIDENTIFIED 911 OPERATOR: OK. What is the gentleman's name?

PELOSI: What's that?

DAVID DEPAPE, ACCUSED OF ATTACKING PAUL PELOSI: My name is David.

PELOSI: The name is David.

UNIDENTIFIED 911 OPERATOR: OK. And who is David?

PELOSI: I don't know. What's that?

DEPAPE: I'm a friend of theirs.

PELOSI: Yes. I -- he says he's a friend but as I said I've never --

UNIDENTIFIED 911 OPERATOR: But you don't know who he is?

PELOSI: No. No, ma'am.

(END AUDIO CLIP)

SMERCONISH: Right. Another key point. The intruder's the one, not Pelosi, who uses the word "friend."

(BEGIN AUDIO CLIP)

UNIDENTIFIED 911 OPERATOR: OK. Are you sure? I can stay on the phone with you just to make sure everything is OK.

PELOSI: No. He wants me to get the hell off the phone.

(END AUDIO CLIP)

SMERCONISH: So, the call terminates. Police are now dispatched to the house. The chronology gets muddied a bit by an audio snippet presumably between the dispatcher and police that did get in the public domain.

(BEGIN AUDIO CLIP)

UNIDENTIFIED DISPATCHER: Stated there is a male in the home and that he's going to wait for his wife. However, he states he doesn't know who the male is but he advised that his name is David and that he is a friend.

(END AUDIO CLIP)

SMERCONISH: Right. See? That makes it sound like Pelosi called the intruder his friend but you heard the tape. He didn't. You heard the 911 tape. But you can imagine how the conspiracists delighted in that type of misinformation.

A French newspaper used it to float a theory that the encounter was some sort of a preplanned gay rendezvous. Elon Musk then amplified that by tweeting a link. This claim was somehow seen as proven by the fact that Pelosi was in his underwear. Well, it would have been unusual if he weren't in his underwear given that the break in took place at 2:00 a.m.

The San Francisco DA Brooke Jenkins felt it necessary to hold a news conference saying she needed to clear up the distortions that had emerged on social media. And as "The Chronicle" reported, "Police determined there were only two people in the home at the time of the incident. We have nothing to suggest that the two men knew each other prior to this incident," said Jenkins.

Also released on Friday was the police body cam footage beginning when officers knocked on the Pelosi front door. I've got to warn you. This is really disturbing to watch.

(BEGIN VIDEO CLIP)

UNIDENTIFIED LAW ENFORCEMENT OFFICER: What's going on, man?

DEPAPE: Everything's good.

PELOSI: Hi.

UNIDENTIFIED LAW ENFORCEMENT OFFICER: Drop the hammer?

DEPAPE: No.

PELOSI: Hey, hey, hey, hey.

UNIDENTIFIED LAW ENFORCEMENT OFFICER: What is going on around here?

(CROSSTALK)

UNIDENTIFIED LAW ENFORCEMENT OFFICER: Whoa, whoa, whoa.

(CROSSTALK) UNIDENTIFIED LAW ENFORCEMENT OFFICER: I got him. I got him.

UNIDENTIFIED LAW ENFORCEMENT OFFICER: (INAUDIBLE). Back up, Code 3.

(END VIDEO CLIP)

SMERCONISH: Following the attack, Paul Pelosi underwent emergency surgery to repair a fractured skull and wounds to his hands and his right arm. He then spent six days in the hospital. He's still recovering.

After the video and audio released, Friday, former Representative Adam Kinzinger re-tweeted a list. It's from the "Seattle Times" and it says, "Hold them accountable." You should take a look at it. Twenty- one politicians and public figures who had cast doubt or made fun of the Pelosi incident. A lot of familiar names.

Look, I get that this is all very painful for the Pelosis to have to relive these horrifying moments. Former Speaker Nancy Pelosi said on Friday that she has absolutely no intention of ever listening to the tape or watching the video of the assault on her husband's life. Their daughter, Alexandra told "The New York Times" Maureen Dowd that the incident -- quote -- "Really broke her." And that, "Over Thanksgiving she had priests coming, trying to have an exorcism of the house and having prayer services."

Well, who could blame her? They've got a right to privacy but from my perspective the evidence being made public is useful and necessary. And it makes this clear, Paul Pelosi seems pretty remarkable, pretty brave, pretty resourceful. How many of us even of a much younger age would have had the deftness to manage an obviously unstable intruder while successfully alerting the police?

[09:50:00]

And hopefully it will put an end to the conspiracy and the misinformation about this incident. Still to come, more of your best and worst tweets, social media, YouTube, Facebook, and the results of this week's nuanced legal question at Smerconish.com.

I'm asking about the second-degree murder charges in Memphis. Yes, bad cops did bad things and killed a young man who didn't deserve to die. But does it meet the definition of second-degree murder? Is that what you saw in the tape?

Go vote at Smerconish.com. I am asking as the state law defines second-degree murder did they knowingly kill him or were they reasonably certain he would die? Go vote.

(COMMERCIAL BREAK)

[09:55:06]

SMERCONISH: The Memphis police chief said that their officers were heinous, reckless and inhumane. Did that video show the knowing killer of another? Seventy-two percent of more than 26,000 said, yes, it does.

A lot of social media reaction this week. Here is some of what came in during the course of the program.

I was with you right up to the word manslaughter. It was murder, plain and simple, says Michael.

Manslaughter is conventionally what you would see charged in a case like this. Of course, at the end the baton blows, the kicks to the head, God awful. I like my colleague Elie Honig's work. It was an aggressive charge. And we will see whether they can prove it or whether there is some other outcome in this case.

What else came in during the course of the program? Limited on time today, so I have got to hustle.

What child after watching these police brutality videos would want to grow up to be cop? We still need good cops.

Yes, I worry about that. I am worried about recruitment especially among African American males into the ranks of law enforcement. One of the data points that I saw pertaining to Memphis is that they are understaffed. They haven't met where they need to be and I got to believe they're going to have a hard time. But the vast majority are good cops, men and women, that's what I would tell young people.

OK. Wish I had more time. See you next week.

(COMMERCIAL BREAK)