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Smerconish

The Cornell Rape Investigation; Attorney General Letitia James, Taking Over As Special Prosecutor. Interview With Author Malcolm Gladwell. Aired 9-10a ET

Aired October 03, 2026 - 09:00   ET

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

[09:00:19]

MICHAEL SMERCONISH, CNN ANCHOR: The Cornell case. Repugnant, yes. Criminal, maybe. Provable? Doubtful.

I'm Michael Smerconish in the Philly burbs. Let's talk about the chronology. First in the public domain was her civil complaint. And then came a lengthy explanation from the local district attorney. News organizations obtained both her signed statement and the longer interview transcript, but neither has been published.

Neither is in the public domain. The New York Times says that it's obtained more than 1,000 pages from Cornell's Title IX investigation. Included is the roughly 120 page transcript of Jane Doe's police interview. An investigator condensed that into the six page statement that she then signed. The district attorney says that statement was the main evidence he relied on in deciding not to prosecute. Inexplicably, one sentence from the transcript never made it into those six pages.

She told police, "I can say with 100 percent confidence that I was raped." That's a serious omission. It suggests the investigation was mishandled or at least incomplete. It doesn't necessarily fit a broader narrative of cover up.

A Title IX investigator, a support person, and her advisor were all in the room when she was interviewed. And her complaint led to at least a dozen Title IX hearings. Much more information, certainly still to come.

I have no doubt that terrible things happened in that fraternity house. Even the DA who didn't charge, called the conduct disgusting, offensive, and morally reprehensible. The Snapchat message inviting fraternity brothers to join in repugnant. Less clear is how much of what happened, if any, was without her legal consent. And looming is a different question.

Can anybody actually be convicted? Two things can be true. The investigation may have been mishandled, and the case may have been fatally flawed from the outset by inconsistencies in her own statements and the peculiarities of New York law. The trouble for any prosecution is the part of the record that cannot be undone. In 2024, she said the first encounter was, quote, "pretty OK." Her lawsuit now says that she couldn't consent to it. But within days of that night, she texted one of the accused, quote, "At the end of the day, none of the sexual stuff was illegal." Those statements are material for a brutal cross examination.

Nothing said now can erase what was said in 2024. And then there's New York law. Every sex crime requires proof beyond a reasonable doubt that the act happened without consent. In a case like this, there are four ways to show that under New York law.

One, forcible compulsion, meaning physical force or a threat. The DA says that her statement doesn't allege force. Two, mental incapacitation. In New York, that means a drug given to her without her consent. She said that she felt pressured, but her statement describes taking the drugs herself.

Three, physical helplessness, meaning unconscious or unable to communicate. The DA says that her statement doesn't claim she was unconscious. And New York law makes it difficult to charge rape if an accuser chooses to get high or intoxicated. If you choose to get high or intoxicated, you can't claim incapacitation under New York law.

Critics call this New York's voluntary intoxication loophole. Albany may well close it, but a new law cannot retroactively make conduct criminal that was not criminal when it occurred. And four, for certain rape charges, clearly expressing non consent through words or actions. She told police she was, quote, "pretty OK" with aspects of the initial encounter, but she did not consent to later sexual activity. Consent to one act does not establish consent to everything that follows.

The question for prosecutors what did she communicate at the time of each alleged act? And would a reasonable person have understood that she did not consent? The case may well go to a grand jury next, but conviction, that's another matter.

My heart breaks for her, and I worry that the criminal justice system might only compound her pain.

Joining me now is Timothy Jansen, a criminal defense attorney and former federal prosecutor. He represented Jameis Winston during the investigation into a rape allegation at Florida State University in 2012. Prosecutors did not bring charges against Winston.

Counselor, thank you for being here. Victim's accounts, they often change as they grapple with the aftermath of a traumatic event. So is that really a fatal flaw here to the prosecution?

R. TIMOTHY JANSEN, REPRESENTED JAMEIS WINSTON: No, it's not a fatal flaw because people perceive things, especially if they're on the influence of drugs or alcohol. And while it's being perceived by her, days later, she may remember other things or she may have got to a point where it was a blackout, where she only recalls things when someone reminds her of bits and pivots of what happened. So the fact that she can't remember everything is not fatal. [09:05:17]

The problem here is her inconsistent statements that were made afterwards and then she signed on to them. She's stuck with those statements. That young woman is stuck with those statements she made.

SMERCONISH: In this case, the DA said, hey, I didn't have the benefit of her assertion that she'd 100 percent been raped. Her six page statement didn't have that contained. Your thoughts.

JANSEN: Well, the problem you have here is the -- first of all, the Cornell University. These university police departments don't have the most sophisticated and experienced investigators in rape cases, should have turned it over to a municipal police department. They did an investigation, they took her statements and then at one point during the Title IX, she came in with an advisor, she had her own advisor and then she signed off on a nine page document where she in there says it was consensual and parts of it were consensual. But -- and then she didn't report this for three days later, which is probably -- or three weeks later, which is problematic.

SMERCONISH: How about the New York law? Let's talk about this. New York law makes it difficult to charge people with rape. If the accuser chose to get high or intoxicated, what would be the impact of changing that law? I'm asking about it today in my poll question.

There's a move afoot in New York.

JANSEN: Right.

SMERCONISH: If the law were to change, what would the ramifications be?

JANSEN: I think it would change a lot because you have to understand these are young college kids. They're exploring their sexuality. There's usually going to be drugs or alcohol involved. So to get a case where you don't have alcohol or drugs involved is almost minimal. So you can't always say just because the person had a few drugs or alcohol that she can't say I wasn't raped and that I consented to it.

She could have a couple drinks and, and still not be able to consent. But this New York law makes the burden so much higher for a victim.

SMERCONISH: Right. I mean, let me simplify. Tell me if I'm wrong. If you choose to get high, if you choose to get intoxicated, you cannot claim you were incapacitated. That's New York law.

JANSEN: That seems extreme to me because -- just because you agreed to have a drink, someone can give you a drink, but they can lace it with and it could turn from voluntary to involuntary. But how do you know when these young people, 20 years old, that they know how much they can tolerate or that drinking becomes, they are incapacitated or unable to give consent. That law seems like it should be changed and make it fit each individual scenario. We don't have that in Florida. And a lot of these cases in Florida --

SMERCONISH: Counsel --

JANSEN: -- alcohol is always involved.

SMERCONISH: OK. I think you and I both are of the opinion that this is a very difficult prosecution. If there were to be a trial in this case, talk to me about jurors, gender, men, women, you, with your experience as a former federal prosecutor and defense lawyer now, how do you think it would play with each gender?

JANSEN: Well, in my 40 years experience, I've tried a lot of these rape cases. Unfortunately, I will tell you that women, especially older women, will judge women more harshly than men. They do. Because they put themselves in that position and say, would I have done this? Would I have done that?

And older women will not condone her activities. And I'm not saying what she did was wrong, but they just judge them differently. In these kind of rape cases, these date rape cases, women are tough on other women.

SMERCONISH: Letitia James has now been put in charge by Governor Hochul of a new investigation. In social media, can we put up on the screen what Letitia James said before this recent appointment? Quote, "What this young woman has been forced to endure is horrific and unacceptable. I'm holding her in my heart and in my prayers. To her, and to all survivors, you're not alone.

We stand with you." This post on Facebook came up yesterday at the press conference. I'm going to run a short clip. Do it.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Attorney General, on your Facebook page three days ago, you wrote, "What this young woman has been forced to endure is horrific and unacceptable. I'm holding her in my heart and in my prayers. To her, and to all survivors, you're not alone. We stand with you." Why did you affirm her allegations as fact without doing your own fact finding investigation into the governor?

[09:10:02]

Why did you appoint an official who made a public statement affirming those allegations as fact, as someone is supposed to be doing an investigation?

GOV. KATHY HOCHUL (D), NEW YORK: I will answer that. I have every confidence in our attorney general to do what she has always done. Look at the facts, examine the record, and draw the proper conclusions. That's exactly what's going to happen in this case.

UNIDENTIFIED MALE: Attorney General.

LETITIA JAMES, ATTORNEY GENERAL OF NEW YOR: I will not comment on a Facebook post.

(END VIDEO CLIP) SMERCONISH: Counselor, did the attorney general --

JANSEN: Michael --

SMERCONISH: -- put her thumb on the scale before she was put in charge of this?

JANSEN: Michael, this is embarrassing to the governor and to the attorney general and to everyone that wants an independent investigation. Lady justice is blind. But this attorney has already come out and made her opinion known.

I don't disagree what she said, it was horrendous. But she should not be the one conducting an investigation that she has already publicly said she's made her decision. She should recuse herself and another prosecutor should be appointed if everybody wants lady justice to be blind and neutral.

SMERCONISH: I thought the same thing as I watched it unfold.

Timothy Jansen, thank you for being here. Appreciate your expertise.

Joining me now is Tom Thurman, a retired deputy district attorney in Davidson County, Tennessee. He helped prosecute the Vanderbilt case in which former football players raped an unconscious student in 2013. Prosecutors in that case had photographs and video of the assault.

Counselor, thank you so much for being here. I was eager to have you as my guest because you handled something similar. At Vanderbilt, the victim first told police that nothing had happened, apparently repeating the story that a player had given her. How did you keep that from sinking your case?

TOM THURMAN, PROSECUTOR IN 2013 VANDERBILT RAPE CASE: Well, because we had video and she was unconscious the whole time, so she didn't know that anything had happened. And they were investigating a vandalism case where a door had been broken and they showed video of four individuals carrying her into the room unconscious. So that started the investigation and talking to people. And obviously police were able to get search warrants and get cell phones which showed video of the actual rape occurring. So it was a lot stronger case than what it appears to be in New York.

SMERCONISH: At Cornell the accuser told police that part of that night was consensual and that she'd taken drugs voluntarily. Then days later, she texted one of the men that nothing, quote, unquote, "illegal" had happened. Can you take a case with those facts to the jury?

THURMAN: From what I know about this case, it'd be very difficult because there's an archaic law in New York about intoxication. She admitted to voluntary alcohol and drug intoxication. But I think that would be very difficult with all the other facts in this case.

SMERCONISH: In your case, as you described at Vanderbilt, the victim was unconscious, and you had tape. At Cornell, there's this appalling Snapchat message inviting fraternity members to join. Disgusting stuff. But it's not the same as having a video like your case.

THURMAN: That's correct. That's only one Snapchat sent by somebody. I assume they know who it was, but obviously that would be strong evidence in the case, but I don't think it's enough in this particular case.

SMERCONISH: So, overall, and based on what you know, and new details are coming forth, you know, each and every day, how difficult do you see the Cornell case based on that which is in the public record so far?

THURMAN: Very difficult. I talked to my two other prosecutors on the Vanderbilt case, we all agreed that we couldn't prosecute this case the way it stands now with what information we have, it could be additional information that will allow it. But, you know, it's the late reporting. There's no rape kit done. They weren't able to get search warrants and get their cell phones, to my knowledge, and could have gotten a lot of evidence.

A lot of evidence was lost because of late reporting, too, so. Which is understandable in these cases. That happens a lot.

SMERCONISH: Your words, however truthful they may be, are going to be frustrating to a lot of people who are watching and seeing this case unfold. And you would say to them, Mr. Thurman?

THURMAN: Well, obviously, it's the prosecutor's duty to only take cases forward. They believe they can get a conviction beyond a reasonable doubt, which is strong. And there's a lot of problems in this particular case. And you'd have to sit down with a victim and talk to her, have a serious conversation about if she wants to really go through something like this, which is very traumatic anyway. Would it add more to her trauma to go through a trial that you, in all likelihood, aren't going to win?

You might get a hung jury. There might be some people that go (ph). There's so many issues in this case with a police investigation and, you know, her inconsistent statement, supposedly, that she's made about that night. It just seems like it would be a defense attorney's dream to have this case.

[09:15:01]

SMERCONISH: Mr. Thurman, thank you so much for your legal analysis.

THURMAN: OK, thank you.

SMERCONISH: What are your thoughts? Hit me up on social media. I'll read some throughout the course of the program. Facebook, Twitter, YouTube. Should drunken sex be illegal?

Is this where we're going? Well, Kyle, perfect segue, because in New York, if you choose to get high, if you choose to get intoxicated, you can't claim in capacity.

Let me expand. Let me say something about today's poll question, because it's important, but it's complicated. New York's rape law draws a line that most people don't know exists. A person counts as mentally incapacitated and therefore legally unable to consent to sex only if the drugs or alcohol were given to them without their consent. If they drank or they got high voluntarily, the law generally protects them only if they were physically helpless, meaning unconscious, if they were physically unable to communicate.

And that distinction is at the heart of the Cornell case that the district attorney, the DA said that the student's original statement described her drug use as voluntary and didn't claim that she was unconscious. So under current law, that largely ended the inquiry. Critics call that the voluntary intoxication loophole. And they argue that somebody who's awake but too impaired to make a real decision is no more able to consent just because she chose the first drink.

Minnesota closed a similar gap in 2021 after its Supreme Court overturned a rape conviction on exactly this point. And Assemblyman Jeffrey Dinowitz has a bill to do the same thing in New York.

The other side deserves a hearing. What is the other side? Well, where's the line between being drunk and too drunk? If both people were impaired, who's responsible?

And how does a jury decide months later whether somebody who was conscious and talking could still meaningfully say yes? Defense lawyers warned that the change could turn regrettable nights into felonies to the point of the social media posting.

So here's what I'm asking at smerconish.com today, should someone who voluntarily got drunk or high be considered legally unable to consent to sex even if they were conscious and able to communicate? If you vote yes, you're voting to protect the impaired person the same as someone drugged against his or her will. And if you vote no, you're embracing New York's current law. Go vote at smerconish.com.

Up ahead, a big report on media bias just came out. Plenty in my business would be disappointed by a score near zero. Why I'm not? But I'm still chasing a Blutarsky.

And for years we've heard the phrase defund the police. But maybe the problem is that we're under policed. Malcolm Gladwell is here to talk about that. Please register for my daily newsletter when you're voting at smerconish.com. On the poll question, you'll get the work of illustrators, including Eric Allie.

(COMMERCIAL BREAK)

[09:22:16]

SMERCONISH: I received a report card this week and I think I made the honor roll. The greater is Ad Fontes Media, Latin for to the source. It's a self-described public benefit corporation that rates news content for reliability and bias. So far they've rated 915 T.V. and video shows plus podcasts, websites and print.

Their stated mission is to bring people together. Ad Fontes believes that misleading, inaccurate and polarizing media have driven us apart.

Founder and CEO Vanessa Otero is a Denver patent attorney. She told me a couple of years ago that she started charting news sources as a hobby during the 2016 presidential campaign. The hobby then became a business. Ad Fontes has raised millions in investment. They've got a team of about 50, including some 40 trained analysts.

Its clients include advertisers who use the ratings to decide where to spend their money. Today, each episode they rate is reviewed by a panel of at least three trained analysts, one left leaning, one right leaning, one center. They watch together, they discuss and they must cite the words behind each score that they offer. They even weigh how a host treats guests. So cheerlead a guest who agrees with you and your score drifts outward.

Challenge one from the other side and it moves toward the middle. The result is a chart that measures two things, reliability top to bottom and bias, left to right. The bias scale runs from minus 42 on the far left to plus 42 on the far right and dead center, that's zero. This program scored a plus 1.25 and landed in the group Ad Fontes calls generally reliable and minimally biased.

My podcast, drawn from my daily Sirius XM radio program, scored a minus 3.76. Both are in the same center band as my previous scores.

Now let me put those numbers in context. Bret Baier "Special Report," that's a plus 10.46. Ben Shapiro's podcast a plus 19.68. "Fox and Friends," plus 19.87.

Meanwhile, "60 Minutes," minus 9.55. MS NOW, minus 18.67. The "Pod Save America" podcast, minus 22.33. I wear my scores as a badge of honor, but it occurs to me that my classmates might be equally proud of theirs, proud of their left or right bona fides. I don't think either end of the ideological spectrum represents a majority, but that's where passion resides, and the money follows for partisan outlets and politicians alike, it's a vicious cycle.

[09:25:03]

Say something incendiary and you get platformed. Get platformed, and if you're a politician, you can fundraise. Platform and fundraise and you can win a primary in a gerrymandered district, especially in a closed primary state. And after that, the general election is a foregone conclusion.

Ad Fontes won't call anyone unbiased. Otero says nobody is. And I agree. But I'm proud of my grade and I won't rest until I achieve a Blutarsky, a perfect 0.0.

Still to come, more of your social media reaction. And with U.S. homicide rates higher than other Western nations, we discuss how it may be time to rethink our whole system, from putting more cops on the streets to putting less people in prison. Malcolm Gladwell is here on his new book, "The American Way of Killing."

I want to remind you, go to my website at smerconish.com, enter today's poll question, should someone who voluntarily got drunk or high be considered legally unable to consent to sex even if they were conscious and able to communicate? If you're voting yes, you're voting to protect the impaired person, the same as somebody drugged against his or her will. If you vote no, you're embracing New York's current law.

Sign up for my newsletter when you're there voting. You'll get the work of illustrators like Steve Breen.

(COMMERCIAL BREAK)

[09:30:55]

SMERCONISH: You can find me on all the usual social media platforms. Follow me on X. Check out our YouTube content, Facebook as well.

You are responsible for your actions and that includes both parties. Her drinking and drug use put herself in a dangerous situation, and the frat boys took advantage of her impaired state.

I'm just going to pick up on impaired state because the legal question is then one of, was she incapacitated? And I know I keep going over this again and again and again, but I think it's that important.

Incapacitation, by that New York law, is only when someone drugs you, you know, and you're unwitting in your behavior as a result. If you -- I'll say it more simply, if you voluntarily get intoxicated, if you voluntarily get high, you can't claim incapacitation under New York law.

That's -- that's the -- I said in my opening commentary, I use the word peculiarity. That was the word that I wrote. And I think that's true. It's a peculiarity of New York law, which in combination with the inconsistencies in her statement or statements, makes this a very, very difficult case to successfully prosecute.

More social media reaction to my thoughts on Cornell and other people's thoughts.

No. This seems reminiscent of the Duke lacrosse team frame up by the then corrupt D.A. Mike Nifong, now disbarred. Perhaps the Cornell fraternity were not behaving as angels, but all seemed to be consenting adults.

Well, Rick, that's certainly what the D.A. in this case believed when he saw the statement. By the way, I think that some of the criticism -- I'm this far extended. Why don't I go all in? I think that a lot of the criticism of the D.A. is unfounded.

That summary of her transcript didn't contain the line. And this is terrible. How someone -- I'd like to know who prepared the summary because if in the interview she said, I know that I was 100 percent raped, and that didn't make it to the short form, the summary that she then signed, that's appalling.

The D.A. had only that statement to work with. And you can make an argument, well, he should have requested the transcript as well. Then again, if I'm the accuser, if I'm the victim in this case, and they present me with a six-page summary and it doesn't contain that, I believe I was raped emphatically believe -- then I'm not signing that statement. I mean, I could -- I could go round and round and round on this and see it from all vantage points.

More social media reaction. What else do we have?

The Cornell frat incident and rape allegations are disturbing and warrant investigation. I agree with that. But Governor Hochul using the sad situation to grandstand for political points is pathetic.

Let me say this. I'm puzzled by Governor Hochul turning to Letitia James to be the one to conduct the investigation. Did the governor know that the A.G. put her thumb on the scale three days prior on Facebook?

Catherine, do you have that that Facebook -- sorry, I'm catching you cold on this. You know, now we're totally unscripted. Do you have the Facebook post that we used in the -- in the A block?

Check this out. So here's the New York attorney general. What this young woman has been forced to endure is horrific and unacceptable. I'm holding her in my heart and in my prayers. I am too. To her, and all survivors, you're not alone. We --

But the part where she says what she's been forced to endure, did she not, in that statement -- she's entitled to her opinion. Did she not in that statement weigh in and say, I'm accepting her version of what transpired, notwithstanding the DA's decision?

OK. I mean, that's all right. But then are you the person appropriately investigating it and saying, I'm going to call balls and strikes? No, I think the Facebook post should have taken her out of the equation.

[09:35:04]

And the other thing, it's all just taken on like a political dynamic. I don't see things in political red, blue terms. But by tapping her, it also became a political thing and that's horrible. And none of -- none of this serves the young woman well. That's what I worry about most.

I worry most that now we've just started a two-year time process at the end of which she's not going to get the justice that she's looking for and it will be emotionally grueling. Make sure you're signing up for my newsletter when you're voting on the poll question today. But the poll question comes straight out of New York law.

In New York, a person who's drugged without their knowledge can be considered legally unable to consent to sex, but somebody who drank or got high voluntarily generally can't unless they were unconscious or physically unable to communicate. And that's what I'm asking about today. The poll question is about the person in between, awake, talking, but too impaired to make a real decision. Vote yes and you're saying that person should be protected by the law the same way as somebody drugged against their will. Vote no and you're siding with the law as it stands today in New York.

I've read it several times. I'm not going to read it again. It's on the screen. It's at Smerconish.com. So go and vote on today's poll question.

Still to come, my conversation with Malcolm Gladwell about his new book, where he's got radical new prescriptions for dealing with our high murder rate. He says our system is doing the opposite of what we need to do. At Smerconish.com you're going to get the work of illustrators like Jack Ohman.

(COMMERCIAL BREAK)

[09:40:49]

SMERCONISH: Are we thinking about gun violence all wrong? Malcolm Gladwell thinks so. In his new book, "The American Way of Killing: The Invention of an Epidemic," he argues that we've misread our own history with guns, misunderstood what drives lethal violence, and drawn conclusions from crime data that's incomplete. And he makes a case sure to provoke. Some think that we're over-policed when the opposite is actually true.

His conclusion? We've grown blind to how serious our gun problem really is. Malcolm Gladwell, the bestselling author, joins me now.

Malcolm, thank you for being here. Los Angeles and Berlin, they're about the same size. L.A. has roughly 8,500 police officers. Berlin about 18,000. You draw significance from that? What is it?

MALCOLM GLADWELL, AUTHOR, "THE AMERICAN WAY OF KILLING: THE INVENTION OF AN EPIDEMIC": That America is dramatically under-policed relative to its peers around the western world. So that comparison between L.A. and Berlin is not unusual. In fact, you can systematically go through major American cities and compare them to similarly sized cities in other places and we have way too few cops.

Police chiefs in other parts of the world come here and they're like, what are you guys doing? And what's fascinating about this is that the amount of money spent on public safety in Europe -- European countries and America is about the same. But we spend this much on prisons and this much on cops, and they spend this much on cops and this much on prisons, right?

We have completely different strategies. And there's no one who thinks our strategy is better. Doesn't it make more sense to spend your money on preventing crime than it does on locking people up after they've committed a crime? We have it backwards.

SMERCONISH: From the book you say this, the Germans look at America and they say, you are far too soft on crime. You have no police. Americans look at Germany and they say, you are far too soft on crime. You don't lock anybody up. And your prisons are country clubs.

You visited a Berlin prison with no barbed wire and much shorter sentences. Take us inside and tell me, what did that teach you about how we spend our crime dollars?

GLADWELL: Yes, there's a very different philosophy about imprisonment in Europe. Like I said, the focus there is on having large police forces that are connected to the community that can work closely to prevent crime. Once -- and when someone is arrested of a crime the focus is on the certainty of arrest and the speed at which the justice systems move.

The severity of punishment is not something they're hung up on. So, their prisons don't look like ours. They're not horrendous places. There's no barbed wire everywhere. The prisoners -- the principle in Germany that the principle -- a prisoner has to be treated as closely as possible to someone who is on the outside, a free person as possible.

It's a very different -- and we -- you know, that's -- it's very kind of striking to an American to visit a German prison because it doesn't feel like what we're used to. We have an expectation that you're supposed to really seriously punish someone. But they're saying, no, we're putting our emphasis somewhere else. And I think in the -- at the end of the day their approach is the right one.

SMERCONISH: The rallying cry here in the United States after George Floyd was defund the police. Do you really think you could -- you could sell politically what you're prescribing in the new book?

GLADWELL: Absolutely. I think that many Americans, I think, if you explain to them the extent to which we're under-policed -- and all the things we can't do because we're under-policed.

So, I had a fascinating conversation when I was doing my reporting with a big city police chief named Dan Oates, who's a very, very well respected police chief. And he walked me through an hour long conversation, all the things he could do if he had European levels of cops, if he had twice as many police, he could establish ties to the community. He could -- he could know about problems before they bubbled up to the surface. He could have -- you know, you get a first -- a first glimpse of the kids who are getting into trouble from the schools.

[09:45:06]

He would have much closer relationships with schools, so he would know where -- which kids were on the wrong path. He would be able to get to a fight in a bar in five minutes, as opposed to 10 minutes on a -- on a Saturday night. And that's the difference between someone dying and someone not.

I mean, he went on and on and on and on. And the vision he was painting of what police looked like when you have more of them was so appealing. You know, they could get out of the cars. You know, if you don't have enough cops, your police are just racing from one emergency to another inside their police car. You want to give them the time to get out of the car and get to know the community.

SMERCONISH: I can hear a criticism from viewers who haven't yet read the book. They'll say, well, research shows that when cities -- when they add officers, maybe the homicide rate will drop, but arrests are going to go up for more minor offenses. Think broken windows philosophy. And folks in the minority community, they're the ones who will pay the price. You would say what?

GLADWELL: I would say, if that's what we're going to be doing with more police, then that's a mistake. The point of -- the point of hiring more police is not to do more of the same. It is to pursue a completely different approach to law enforcement.

So as a good example, the city that's had the largest drop in homicides in the last couple of years in this country is Baltimore. When Baltimore was the murder capital of the world, they arrested 100,000 people a year. They -- last year, they arrested 17,000. And their murder rate was a fraction of what it was a couple of years.

The appropriate and a path to take law enforcement on is away from mass arrests and more towards working closely with the community.

SMERCONISH: Malcolm, when we see headlines that note a drop in homicide, and you ISO Memphis in the book, you say that might actually be a false positive. Why?

GLADWELL: Homicides are wrong -- is the wrong metric to use to judge the level of lethal violence, because there's two things that go on with a homicide -- with homicide rate. One is it's a measure of the amount of lethal violence, A, or potentially lethal violence. And two, it's a measure of how good your medical care is, right? If we get really good at treating gunshot wounds and we can get people to trauma centers really quickly, and we have skilled surgeons, we can save a lot of people who would otherwise die.

So we always forget about the second part. Some portion of the reason for the falling homicide rate in America in the last 20 years or so is we've gotten really, really good at saving the lives of people who we shoot. That doesn't mean we're a better society. It just means our doctors are really good.

SMERCONISH: Bottom line from the new book, "The American Way of Killing." You see an expressive violence problem in the United States, and that arguments here that go sideways, they get mixed with guns and that's what separates us. Is that a fair encapsulation?

GLADWELL: Yes. Well, you understand what homicide is. Homicide is basically young men having arguments and settling those arguments, those disputes, those grievances, what have you with lethal weapons. And when there are lots of lethal weapons around, then you're going to have a -- you're going to have a high homicide rate.

SMERCONISH: Malcolm, you have really a unique gift of taking fresh eyes and looking at an old problem. I thought that the book was great. Thank you and good luck.

GLADWELL: Thank you so much, Michael.

SMERCONISH: You still have time to vote on today's poll question at Smerconish.com. Should someone who voluntarily got drunk or high be considered legally unable to consent to sex, even if they were conscious and able to communicate?

While you're there, register for my free and worthy daily newsletter. You'll get editorial cartoons from the likes of Rob Rogers.

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[09:53:12]

SMERCONISH: OK, there's the result so far. You know what I like about this? It's arguably the most complicated poll question I've ever asked. I've explained it three times over in the course of this hour. Should someone who voluntarily got drunk or high be considered legally unable to consent to sex, even if they were conscious and able to communicate?

I like the fact that 27,000 so far were not intimidated, understood it, and voted. It's essentially 60/40, 59 to 41. And I would explain it this way. The 41 percent are embracing New York law, which applies in the Cornell case, and the 59 percent are saying New York law needs to change that. This definition of incapacitation shouldn't be limited to someone who's given meds or a drink against their will, or said more simply, I hope that you can voluntarily drink or get high and still get raped. You know, it could begin one way and it could end dramatically different.

Social media reaction. If you haven't voted, go to Smerconish.com and vote.

If you voted yes, you're supporting a precedent that all sex while drunk or high is potentially rape. That's a dangerous precedent that erodes personal agency and invites revenge and regret and weaponized through rape accusations. And it will effectively ruin dating and sex.

Wow. I wish I had Jenannedouglas to put up on the screen before people voted on that, but some defense lawyers make that point that you're going to be criminalizing consensual sex where there's booze or drugs involved. It's complicated. It's a complicated question.

More social media reaction. What else do we have? You know that I don't see them in advance, right? All fraternities and sororities then need to be shut down if they make that law.

[09:55:03]

All sexual encounters where someone has drunk will be considered illegal.

Again, Debbie Mac, also like that prior comment. Let me just ISO on the fraternity and sorority comment. I mean, you've got the Ivy League and you've got fraternities involved in this case. You know, two institutions, one writ large, very low in the public opinion polls these days.

And I'm still a believer in the system. I'm still a believer in the mingling in a good sense that can come from men, women in a sorority, living together, having to get along and divvy up tasks to make the housing unit work. So, I hope it's not the death knell of fraternities.

Quickly, I can do one more. I promise you I can. Hurry up. I've got my eye on the clock.

No means no, full stop. No matter how high the woman is or how drunk or how far into the night goes when she says stop, you stop.

Agreed, Patrick. But was there a clear articulation in this case? The records we've read about and seen don't suggest that there was.

If you missed any of today's program, you can always listen anywhere you get your podcasts. Thank you so much for watching. We will see you next week.

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