updated 8/22/2014 9:14:25 AM ET 2014-08-22T13:14:25

POLITICS NATION
August 21, 2014

Guest: Paul Henderson; Marq Claxton; Patricia Bines

REV. AL SHARPTON, POLITICS NATION HOST: Good evening Ed and thanks to you
for tuning in. Tonight`s Lead the St. Louis prosecutor versus Governor
Nixon. The prosecutor in charge of the Michael Brown investigation is
raising all kinds of questions from the community on whether he can deliver
a fair investigation. This comes as thing seem to be calming down in
Ferguson today.

Missouri Governor Jay Nixon today ordered the state national guard to
withdraw from the city. That after what Captain Ron Johnson called a very
good night in Ferguson. But passions are still running high over whether
the investigation into the Michael Brown shooting will be fair.

Right now, it`s up to St. Louis county prosecuting attorney bob McCulloch
to bring charges against Darren Wilson, the officer that killed Mr. Michael
Brown. Grand jury is hearing evidence, but many in the community are not
confident in this prosecutor. And today, state senator Jamilah Nasheed
delivered a petition for the prosecutor to recuse himself.

(BEGIN VIDEO CLIP)

JAMILAH NASHEED (D), MISSOURI STATE SENATOR: I am here today to deliver
70,000 signatures. Those signatures basically are coming from everywhere
throughout this country. Worldwide, people have made a statement.

(END VIDEO CLIP)

SHARPTON: But when she went to deliver those petitions to the office,
something unbelievable happened.

(BEGIN VIDEO CLIP)

NASHEED: We want to take them to the office subpoena.

UNIDENTIFIED MALE: I -- I know.

NASHEED: We have a few people here.

UNIDENTIFIED MALE: I know.

NASHEED: And this is a public entity. This is our first amendment right.
OK, I`m an elected official.

UNIDENTIFIED MALE: I know.

NASHEED: I`m the senator for the state of Missouri.

UNIDENTIFIED MALE: Yes, ma`am.

NASHEED: How dare you tell me I can`t go up? This is a public building.

UNIDENTIFIED MALE: Ma`am. Step over the line and you will get arrested.

(END VIDEO CLIP)

SHARPTON: How can Ferguson residents have confidence in police and other
officials when they block a state senator from a public building? A few
minutes later, she was brought inside and Mr. McCulloch vowed to stay on
the case saying, quote "I have no intention of walking away from the
responsibilities and duties entrusted to me by the people of this
community." He also said, "I have a responsibility to the family of
Michael Brown and the declaration of emergency by governor Nixon grants the
governor the exclusive power to remove me. I do urge all seeking my
removal the to express those demands to the governor."

Some have called on the governor to remove him. So far he`s refused. Even
with relative peace on the streets of Ferguson, there is still a lot of
controversy about how the case is moving forward.

Joining me now from Ferguson, Patricia Bines, Democratic committeewoman for
Ferguson township, and MSNBC.com`s Trymaine Lee. Thank you for being here
tonight.

TRYMAINE LEE, MSNBC.COM: Thank you.

PATRICIA BINES (D), FERGUSON COMMITTEEWOMAN: Thank you for having me.

SHARPTON: Let me go to you, Committeewoman Bines. You want a special
prosecutor. Bob McCulloch says he won`t step down, but the governor has
the power to remove him. What should the governor do?

BINES: Well, the governor should remove him. But as we can tell, there
is political grandstanding going on. And neither one seems interested in
making that we have a special prosecutor here. Bob McCulloch can step
down. He said he`s not doing it. The governor is basically showing he`s
not going to remove him. So this is the answer. And it`s not the answer
that the community is looking for.

This is not what we want. We wanted a special prosecutor to take on the
case. Because what we see now is ridiculous. There is no transparency.
And when you try to get some accountability and some answers, they block
you just like they did Senator Nasheed who was just trying to give the
petitions.

SHARPTON: Now Trymaine, we have seen a lot of people question if Bob
McCulloch can be objective about this case. Some have are raised the fact
that his father was a police officer, killed in the line of duty by an
African-American man. Also in 2001, he didn`t charge two officers who shot
and killed two unarmed African-American suspects. And he referred to the
two men killed as quote "bums." How worried are residents of Ferguson
about this prosecutor?

LEE: I think the residents of Ferguson have long been concerned because
while some of the viewers and people outside of the community don`t know
who Bob McCulloch is. He`s no stranger to the community. And so, with the
in-fighting and all the controversy and long history it does little more
than fuel their concerns that they want a special prosecutor but they need
a special prosecutor.

And so, again, as you mentioned some of the grandstanding, the political
maneuvering. But it is clear the showdown has shifted from are streets to
the process, it is only getting stickier.

SHARPTON: Now, let me ask you this, Ms. Bines. The attorney general, Eric
Holder, visited the area yesterday in Ferguson. Today, he talked about
what he told residents and how the trip affected him personally. Take a
listen.

(BEGIN VIDEO CLIP)

ERIC HOLDER, U.S. ATTORNEY GENERAL: Our investigation will be fair. It
will be thorough. And it will be independent. On a personal note I have
seen a lot in my time as attorney general. But few things affected me as
greatly as my visit to Ferguson. I had a chance to meet with the family of
Michael Brown. I spoke to them not just as attorney general but as a
father of a teenage son myself. They, like so many in Ferguson, want
answers.

(END VIDEO CLIP)

SHARPTON: Some thought that the attorney general`s visit also served as a
calming influence in Ferguson. Do you view it that way, Ms. Bines?

BINES: Absolutely. The people are starting to feel like this is being
taken seriously. And it`s getting the attention that it deserves. So, we
certainly appreciate the attorney general`s visit. And it`s gone a long
way trying to calm things down.

But what`s going on as far as the special prosecutor and the process now,
this is the part that people are really focusing on. Now that we know the
attention is here.

SHARPTON: Now Trymaine, the justice department could open an investigation
into police practices as well in Ferguson. In the last five years, there
have been 20 justice department investigations into police departments.
More than twice as many in the previous five years. So today, the attorney
general was asked if he`d open a similar investigation in Ferguson. Listen
to his response.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE REPORTER: You have been very forward-leaning on the
issue of pattern or practice investigations. Is that something that can be
done? And where are you and your team on that?

HOLDER: There is nothing I want to announce at this time with regard to
that possibility. But there are a number of tools that the justice
department has with regard to examining police misconduct cases.

(END VIDEO CLIP)

SHARPTON: A lot of tools is what the attorney general responded, Trymaine.
Where is the community on that when they hear him saying that it is a
possibility. He may deal with investigating his whole department.

LEE: Right. I spent some time in neighboring Kinloch (ph). It is the
oldest black incorporated town in the state of Missouri. And a gentleman
there, a reverend that`s been there a long time, he said when that man
pulled the trigger, he didn`t realize we would have help from Washington.

And so the feeling is that attorney general Eric Holder saying that he will
close watch what`s going on here means a lot. Because again, almost to a
person, they will tell you that there is such a long history here from are
the daily harassment. Take a look at the summons, but also all the fines
and fees. It is the second highest generating form of capital for the
city, trying people, delivering warrants. So, it`s all part of this big
machine that people on the ground have been part of and ground up in for a
long time. So it is reassuring for them that the attorney general has
assured them he`ll be here with all those tools.

SHARPTON: You know, Ms. Bines, I did a segment on the fines last night.
One of the things that`s interesting to me is that with this now appearing
that the attorney general and the justice department is watching very
closely what`s going on, so much so that an unprecedented visit by him
personally there. It also puts the heat on the local prosecutor and the
police and investigators that no matter what happens with the federal
government in an investigation, I they better watch their step in what
they`re doing.

BINES: Absolutely. Absolutely. Bob McCulloch has been the prosecutor
here for the past 24 years. So it seems like there`s been a culture in
place. And there`s been a business as usual attitude in taking care of the
business when it comes to prosecuting and law enforcement.

So what we are seeing is a very ingrained culture. And that`s how we got
to the point where we are today. But everything has to come to an end.
Everything done in the dark will come to the light. I think we are going
to start seeing some light being shown in a couple of places around here
that a few people may not like.

SHARPTON: Trymaine, do you feel that the peace we saw last night right
after the attorney general`s visit of things calming down, there was also
bad weather. Do you think that`s a signal that things are calming down and
shifting from the streets to the policy debates or was it some
thunderstorms in the attorney general?

LEE: I really think it`s the perfect combination of everything. You had
torrential downpours and now you have an excessive heat along with the fact
that people are tired, protesting for going on two weeks now. You have the
attorney general bringing this hope and sense that the federal government
is here.

I think it`s a perfect combination. Also a shift in police strategy. They
hadn`t been as aggressive and as violent are with protesters as they were
the night before. And so, I think, Rev., there is the point where is at a
tipping point and a turning point where we are, indeed, seeing a shift of
the pressure back into the system.

And so moving forward, I`m not sure if we`ll see the flare up of what we
have seen before. But if what we saw last night, I don`t think we`ll see
what we have seen in the past week.

SHARPTON: All right, I`m going to have to leave it there. Patricia Bines
and Trymaine Lee, thank you for your are time tonight.

BINES: Thank you.

LEE: Thank you, sir.

SHARPTON: Coming up, inside the investigation. A new eyewitness comes
forward. And new reports about what might happen and what might have
happened before shots were fired.

Plus, five years ago Ferguson police allegedly beat an innocent man, then
charged him for bleeding on their uniforms. You will not believe where
that officer is today. It`s an unbelievable story and it`s ahead.

And it is ahead, Ferguson coming together. From NFL teams to highway
patrol officers. Stay with us.

(COMMERCIAL BREAK)

SHARPTON: Coming up, inside the investigation. A new eyewitness and many,
many more questions. Our legal panel is ahead.

(COMMERCIAL BREAK)

SHARPTON: The fatal shooting of Michael Brown is putting the use of deadly
force by police in the national spotlight. And today, a new video from a
separate and unrelated shooting in the St. Louis area is raising more
question s.

The St. Louis police released this cell phone video from two days ago.
They were called to the scene after a 25-year-old man allegedly stole two
energy drinks and a donut are from a convenience store. They say he
threatened them with a knife, causing them to open fire and kill him. It`s
graphic. So MSNBC has decided to freeze the video just before the man is
shot. And I should note we enlarged the video to give viewers a more clear
picture.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: (INAUDIBLE) knives within 21 feet on a lethal weapon.
So with 21 feet a subject can close the distance before an officer has time
to respond. So this individual is clearly within 21 feet of the officers,
clearly moving toward the officers in an aggressive manner after erratic
behavior.

(END VIDEO CLIP)

SHARPTON: The St. Louis city police chief said right after that, 12 shots
were fired and he was dead. But the police appeared to be following
protocol. The chief -- the chief talked about that. But today many are
questioning if their training needs to change.

Joining me now are Marq Claxton, director of the Black Law enforcement
Alliance and a former police officer and prosecutor and legal analyst Paul
Henderson. Thank you for being here.

UNIDENTIFIED MALE: Thank you.

UNIDENTIFIED MALE: Thank you, Rev.

SHARPTON: Marq, police seem to be following protocol here. What`s your
reaction to the video?

MARQ CLAXTON, DIRECTOR, BLACK LAW ENFORCEMENT ALLIANCE: It`s very
disturbing, the video itself. I mean, it really has impact on anyone who
see it is complete video. And sees the number of shots. And also, you can
observe some options perhaps that the police officers have. I think too
often police officers escalate to the highest form of force, using deadly
physical force when there are many nonlethal tactics that could be used as
well as other alternatives. And that is training is vitally important in
police agencies.

SHARPTON: Now Paul, you know, there`s been a lot of opinion columns
written today about this new video. Here`s one from Vanity Fair. Quote
"few would argue that the latter detail that Powell was carrying a knife
might justify some use of police force. But the officers in the video
appear wholly uninterested in taking Powell down, disarming or taking him
into custody.

Now, generally speaking, does there need to be a shift in emphasis on how
police are trained in the use of deadly force, Paul?

PAUL HENDERSON, LEGAL ANALYST: Well, it`s difficult to assess all of that
just from the video. Because there are so many things going on in addition
to the fact that he may have stolen something that was incidental. It`s
been reported that the cops received information that he did have a deadly
weapon on him. And so, you know, typically when they use deadly force, the
standard is if there is imminent danger of significant injury or death
either to the officers themselves or someone else, the deadly force is
justified and their training is to respond and react. And obviously you
heard the comments earlier when they were talking about the zone being
within 21 feet. The thing to keep in mind is that when you have a weapon
and a knife or something that can be thrown across a distance, that`s
something that`s factored into, too.

Let me tell you, it`s always a are very dangerous thing when you have
someone either with a mental illness, or someone who is inebriated or under
the influence that has a weapon with police officers involved. That`s a
problem.

SHARPTON: There was the contention that the person here, Mr. Powell, was
mentally challenged. Let me ask the control room. Let`s run the tape
again. Because I want you to look at exactly what happened. And at first,
police said Powell had the knife raised up. But later acknowledged that
wasn`t accurate. So watch the rest of this.

(VIDEO CLIP PLAYING)

SHARPTON: Now the fact that it was caught on camera helped to clarify what
actually happened. Does this speak to the need for things like body
cameras on officers, Marq?

CLAXTON: All of that would be helpful, Rev., to tell you the truth, you
know, additional training. And even a tactical training in a case such as
that, you know, where you are talking about -- officers are trained across
the nation about, you know, covering concealment, you know, really
increasing your zone when a person encroaches upon it. Use are of
nonlethal weapon and the even more progressive agencies incorporate some
psychological training.

If you are on the scene and you confronted with a person who is obviously
psychologically unstable, there are tactics and things you should do and
things you shouldn`t do to avoid exacerbating the situation that could then
lead to a lethal encounter. And I think often times what we have seen is
that police officers, many times, and not necessarily in this case, but
many times create the environment for a fatal encounter with them. And
that`s what training comes into play. That`s where sensitivity comes into
play.

This is a professional stand. And police officers across the nation are
professionals. And with it has to be professional training and standards.

SHARPTON: I think the key is training, standards and accountability.

HENDERSON: Absolutely.

SHARPTON: Paul, let me show you this. A police officer pointed a
semiautomatic rifle at a protester and threatened to kill him. Take a look
at this.
(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: My hands are up.

UNIDENTIFIED MALE: Hands up.

UNIDENTIFIED MALE: (bleep) raise.

UNIDENTIFIED MALE: Hands up.

UNIDENTIFIED MALE: I will (bleep) kill you. Get back.

UNIDENTIFIED MALE: Did he just threaten to kill him?

UNIDENTIFIED MALE: Get back.

UNIDENTIFIED MALE: What`s your name, sir?

UNIDENTIFIED MALE: (bleep).

(END VIDEO CLIP)

SHARPTON: Now, this is the other night during the protest. Tense
situation, several days of violence. And here is an officer holding a
semiautomatic weapon at a protester. Now, contrary to what people think, I
don`t jump in every situation. Some I think is gray area, I stay out. but
when you look at something as blatant as that, Paul, and there is no
accountability or do you have to force accountability, that`s what bothers
and troubles people.

HENDERSON: I agree.

SHARPTON: He has been suspended, for the record.

HENDERSON: He has been suspended. And what you see there is a peaceful
protest. You see people that are unarmed, that are standing there with a
weapon being pointed directly at their faces.

SHARPTON: That could go off.

HENDERSON: That`s a huge problem in a situation that is tense that is
uncertain, that is rapidly evolving. So these are the kinds of thing that
is the community is very frustrated about. And it`s only exacerbated by
the fact they don`t see face that look like theirs on the other side of the
law enforcement angle that is supposed to be protecting them.

CLAXTON: Also, Rev. --

HENDERSON: Go ahead. Jump in.

CLAXTON: I`m sorry. I didn`t mean to interrupt are you. I was going to
say, and on the accountability what`s interesting about that particular
interaction is that the police officer was suspended, not for pointing his
weapon at the civilians, but for the language. Based on the statements by
the police agency. He wasn`t even suspended for the most egregious and
dangerous act. And that`s what I`m talking about. Often times police
officers --

SHARPTON: That`s the point, Marq and Paul, I have been trying to make.
I`m not anti-police.

CLAXTON: Never been.

SHARPTON: I don`t think anyone should minimize the danger they have
engaging their lives every day, every night. But you`ve got to protect
citizens and good police for people to go over the line. Otherwise we will
never bring this tension down to where we have a society solving problems.
And that`s something that I`m willing to take fact for.

Marq Claxton and Paul Henderson, thank you for your time tonight.

HENDERSON: Thank you.

CLAXTON: Thank you, Rev.

SHARPTON: Ahead, a new eyewitness comes forward in the Michael Brown case.
And he is raising new questions about the investigation.

And later, this man was allegedly beaten by Ferguson police. So why was he
charged for bleeding on their uniforms? His attorney joins us ahead. Stay
with us.

(COMMERCIAL BREAK)

SHARPTON: Despite over a week of confusion and turbulence in Ferguson,
every day we are seeing some acts of kindness. People coming together to
support their community and set an example for their children.

Early this morning, Captain Ron Johnson told the story of three highway
patrol officers who found a way to pitch in.

(BEGIN VIDEO CLIP)

CAPT RON JOHNSON, MISSOURI HIGHWAY PATROL: Today on Elson Drive, much of
the conflict, there were three Missouri state troopers who noticed a
basketball hoop without a net. There was no basketball. The troopers
decided wanted to do something for the kids in the neighborhood. They used
their own money and bought a net and basketball. As they installed the
net, some neighbor children came out of their homes and asked what the
troopers were doing. They told the kids they wanted them to have a net and
a basketball. As those troopers drove off, the children were playing
basketball. That`s the true meaning of community policing.

(END VIDEO CLIP)

SHARPTON: True meaning of community policing. That story stands in
contrast to some of the images we saw just a week ago. I applaud the
officers behind this generous act. And I hope those kids get out and play.

In another part of town since schools still haven`t opened. The St. Louis
rams invited three Ferguson-area high schools to use their practice
facilities this week with. Rams` head coach Jeff Fischer talked about what
it meant to the team.

(BEGIN VIDEO CLIP)

JEFF FISCHER, HEAD COACH, ST. LOUIS RAMS: We are fortunate that we could
provide an opportunity for these young high school athletes to get away. I
imagine they were trying to get ready for games this week practicing in the
park, not at their high school facilities. High school football is, you
know, there is no better game than high school football. And we didn`t
want them to be denied this opportunity.

(END VIDEO CLIP)

SHARPTON: The students got to watch practice and spend time with some of
the Rams players. They even got a chance to join in an authentic NFL
huddle.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Ferguson on three. One, two, three.

CROWD: Ferguson!

(END VIDEO CLIP)

SHARPTON: Good luck tomorrow, boys. We will routing for you.

(COMMERCIAL BREAK)

SHARPTON: And now we go inside the investigation. The grand jury has
started reviewing evidence surrounding the shooting of Michael Brown. And
today another eyewitness is coming forward. Michael T. Brady said he saw
Officer Wilson open fire on Michael Brown from his window.

(BEGIN VIDEO CLIP)

MICHAEL T. BRADY, WITNESSES: By the time I get outside, he`s already
turned around, facing the officer. He`s balled up -- he had his arms like
under his stomach. And he was like halfway down like he was going down.
And the officer lets out about three or four shots at him. He went down.
He was already like this. And he took one or two steps going towards the
officer. And like I`d say, he let go about three or four more shots at
him.

UNIDENTIFIED MAN: Did you see him running toward the officer in any way.

BRADY: No, not after he was running away. No. Not at all.

(END VIDEO CLIP)

SHARPTON: That account closely mirrors what three other witnesses said
they saw. So what will a grand jury do with all of this evidence and where
is the investigation going?

Joining me now are attorney and radio host Midwin Charles and criminal
defense attorney and legal analyst Seema Iyer. Thank you both for being
here tonight.

SEEMA IYER, CRIMINAL DEFENSE ATTORNEY: Thanks, Rev.

SHARPTON: Seema, with the evidence as we know it so far, is there probable
cause for an arrest?

IYER: Of course there is, Rev. And let me tell you this. If I was to --
God forbid -- shoot Midwin I would have been arrested right away. And even
if I had a valid self defense claim and even if I had wounds that would
corroborate that, I would probably have to go into the grand jury and give
my story. And that would be the first opportunity for a dismissal. But I
would be arrested, I would be put through the system.

SHARPTON: So if people are clear, you do not need an indictment for an
arrest. You can be arrested and then later indicted.

IYER: Exactly.

MIDWIN CHARLES, ATTORNEY: It happens all the time. Happens all the time.
That`s what`s supposed to happen.

SHARPTON: So, why hasn`t there been an arrest, Midwin?

CHARLES: That`s an excellent question. And I think that`s why you have
people marching in the streets of Ferguson, Missouri, for the past ten
days.

SHARPTON: Right.

CHARLES: It is just unusual. And what I think happening here is a very
dangerous pattern, where we are starting to see a different set of rules
when it comes to criminal law and criminal procedure when it comes to
police officers versus regular citizens. And I think that that`s a
dangerous path to go through.

SHARPTON: Yes.

CHARLES: There are no separate criminal laws for police officers. There
are no separate criminal procedure for police officers. If any human being
kills another, it`s considered a crime. And that person should be
arrested.

SHARPTON: Now, let me go back to something that you see Seema, that even
if you had injuries, because the police chief has said this officer had
minor injuries.

IYER: Right.

SHARPTON: Others are saying even more.

IYER: Right.

SHARPTON: Yet we have not been able to verify to what degree. But does
that change the story from a legal point of view?

IYER: It corroborates a possible self-defense claim by the officer. But
again my point is if he was a civilian he would still be put through the
system. Because he`s a law officer and he has that somewhat of a qualified
immunity. He has that protection.

SHARPTON: But with self-defense, does he need a life extenuating
circumstance for self-defense or just they were in a scuffle?

CHARLES: Well, the way it works with self-defense is that you have a fear
that you are about to be killed or you are about to be injured. But it has
to be a reasonable fear.

SHARPTON: Right.

CHARLES: Right? And so, reasonable is how reasonable is your fear after
bullet one? After bullet two, after bullet three, after bullet four, after
bullet five?

SHARPTON: Well, let`s watch what the witness said. Listen with Michael
Brady describe what he saw.

(BEGIN VIDEO CLIP)

BRADY: When I heard the altercation, I look out the window and I see
somebody at Ferguson police window. Some kind of tussle going on here.

UNIDENTIFIED MAN: You saw somebody at the window of the police car.

BRADY: Yes.

UNIDENTIFIED MAN: The police officer was still in the vehicle.

BRADY: Yes, inside the vehicle. So, there was some kind of tussle going
on. Exactly at the window, may have looked like he was trying to get away.

UNIDENTIFIED MAN: You couldn`t tell exactly.

BRADY: Yes. I`ve seen some kind of tussle going through the window.

(END VIDEO CLIP)

SHARPTON: So, if he saw -- assuming this witness is accurate.

IYER: Right.

SHARPTON: He saw a tussle going on. He says maybe the guy we assumed is
Michael Brown trying to get away. He would then have to establish then
that this threat -- since you brought up self-defense -- was real even
after the first shot and he got out of the car and went down the block.
Each shot.

IYER: Right. Well, that`s a good point. And just going back to what
Midwin said, and that is the time period. Because that immediate threat of
death or great bodily harm has to be prolonged. OK? You have to keep the
threat going after the first shot, after the second, after the third shot.
So, if you collapse that period of time and you don`t have that threat, you
don`t have self-defense.

SHARPTON: Now, Dorian Johnson also says things that really jibe with
Brady`s story. He claimed Officer Wilson stuck his arm out the window and
grabbed Michael Brown by the throat. Michael Brown tried to break away.
This is Dorian who was with him. And Tiffany Mitchell said she saw Officer
Wilson trying to pull Michael Brown into the police car, but Michael Brown
was pushing, trying to get away from him. All the stories seem to match
up. How will this influence the grand jury?

CHARLES: Well, I think the grand jury will be looking at all of the sort
of statements, but they will also be looking at forensic evidence. They
will going to be looking at the autopsy. They`re going to be looking at,
hopefully, information from the car. The car is a very, very critical
piece of information in terms of whether or not, in fact, a bullet went
off. Are there any fibers in the car? With Michael Brown, any DNA on the
car. So, they will look at everything from the totality. But let me point
out that as a prosecutor --

SHARPTON: Also looking for DNA on the gun.

CHARLES: Right. But as a prosecutor, they have wide latitude in terms of
what they present before the grand jury.

SHARPTON: Or not present.

IYER: Exactly.

SHARPTON: Part of the tension with McCulloch.

CHARLES: Right. So, they don`t have to present exculpatory evidence. In
other words, evidence that can sort of, you know, make it look good for the
police officer or not. So, he has very very wide latitude. It`s called
prosecutorial discretion.

SHARPTON: Right. So, let me ask this. In terms of Midwin mentioned,
autopsy, we know that there are two autopsies in addition to the autopsy
performed by the family. Is it likely to be any conflicting information in
these autopsies?

IYER: Of course there are. Already when I read the different reports
there are going to be conflicting because there are six bullet wounds to
the body. So it`s possible that each of the pathologists are going to have
a different opinion looking at the forensic evidence, where the body was
placed, where everybody was positioned as to what caused the wound. And
it`s important because some people are saying now that if the first four
shots were to Michael Brown`s arm --

SHARPTON: Right.

IYER: That corroborates that is the police officer didn`t intend to kill
but intended to stop Michael Brown. He wasn`t trying to kill him. He was
trying to injure him because Michael Brown was running away.

SHARPTON: But if he was trying to injure him or kill him, we still are
have to deal with the fact he`s using deadly force, Midwin. And whether he
was still fearing that he was in imminent danger of bodily harm or death at
the point of every shot. Is that right?

CHARLES: That`s right. Because the fear has to be reasonable. It can`t
be random. And so I think -- I mean, if all of us is kind of run the facts
through our heads, it seems unlikely that after three bullets -- one
bullet, two, three or four -- that Michael Brown would still continue to go
after this police officer who is armed, who was trained, who was ten years
older than him. It just doesn`t seem to make any sense.

SHARPTON: But when we hear all this about -- two-part question and I have
to go. That he was injured, he was hurt.

IYER: Right.

SHARPTON: But does that have bearing on how hurt he was that he could walk
down the block shooting? I mean, it doesn`t sound --

IYER: Look at Zimmerman, Zimmerman wasn`t that injured and everybody
believed.

SHARPTON: But Zimmerman was one shot.

IYER: That`s true. Right. Well, that`s a good point.

SHARPTON: The other point is with all these voices out there, we
understand the FBI interviewed 200 people.

IYER: Right.

SHARPTON: How do you go through all of these evidence, all these
witnesses? How do you make --

IYER: The prosecutor interviews all of them. And my opinion is, the more
witnesses, the more inconsistencies.

CHARLES: That`s right.

IYER: That`s what a defense attorney --

CHARLES: And that`s what we love as defense attorneys.

IYER: Right.

CHARLES: The more inconsistencies, the better for the defense.

SHARPTON: Midwin Charles and Seema Iyer, thank you both for your time this
evening.

IYER: Thanks, Rev.

SHARPTON: Coming up. Five years ago, Ferguson police officers allegedly
beat a man, then charged him for bleeding on their uniforms. The man`s
attorney joins us next.

And we`ll all need a smile this week. So, thank you, Mo`ne Davis. The 13-
year-old little league star is inspiring a nation.

(COMMERCIAL BREAK)

SHARPTON: Attorney General Eric Holder is reportedly weighing whether to
open broader civil rights investigations into the Ferguson Police
Department. One of the cases the Justice Department is looking into
happened in 2009. The Ferguson police left an innocent man beaten,
suffering from a concussion with the ludicrous charge for bleeding on
police uniforms. On the night of September 20, 2009, police officers in
Ferguson arrested a man named Henry Davis, suspecting him of driving under
the influence. They took him to jail where the four officers allegedly
beat him.

One of the officers, Kim Tihen allegedly struck him in his head with a
closed fist and hit him in the head with handcuffs. Davis testified,
quote, "They started hitting me. I was getting hit. And I just covered
up." Davis insisted he be photographed to document the beating. A
warning, the photo is graphic. Davis said another officer kicked him in
the head at which point he suffered a concussion and almost passed out.
Davis had been arrested for an outstanding warrant, but the police had the
wrong suspect, one with a different middle name and social security number.

Davis was held several days before being charged with four counts of
property damage for bleeding on the police officers` uniforms. He filed a
civil suit. But in December, the claim was thrown out. His lawyer is
appealing that ruling.

Joining me now is Henry Davis` lawyer. James Schottel who is currently
preparing an appeal on his behalf. Thank you for being here.

JAMES SCHOTTEL, ATTORNEY FOR HENRY DAVIS: No problem. Thank you for
having me, Al.

SHARPTON: Now, his first civil suit was thrown out. What do you think Mr.
Davis` chances are of winning this appeal?

SCHOTTEL: The rulings by Judge Baker, we felt the judge completely erred,
particularly on the excessive force claim. She held that Mr. Davis`
injuries were de minimis or minor. There has been no ruling in the a-
circuit whether a concussion is a minor injury. And we strongly feel that
it is not a minor injury. And that the case should not have been dismissed
on that count. Mr. Davis testified that he had a concussion from being
beat in the head and kicked in the head. And still to this day he suffers
from headaches from that injury.

SHARPTON: But Attorney Schottel, concussion or not, what about the
ludicrous notion of beating a man who was the wrong man and you charge him
with bleeding on your uniforms while you were beating him? I mean, what
about the fact they shouldn`t have been beating him at all? I mean,
concussion notwithstanding, what about that?

SCHOTTEL: Well, we agree. And you know, in the civil rights cases they
are very difficult. Because you have to overcome the hurdle of what`s
called qualified immunity where officers, you know, can you know, use force
on people yet they are entitled to qualified immunity. It`s a long line of
legal cases.

SHARPTON: So, let me get this right. So, an officer has the legal right
to assault me, beat me, charge me with bleeding on them from a beating they
gave me and as long as I don`t rise to a certain level of hurt like a
concussion, there is nothing I can do about it.

SCHOTTEL: That`s true, based upon this case of chambers is what it`s
called. If the injuries are de minimis or minor, an officer can be
entitled to qualified immunity. Now those charges and them being false
that we alleged, you know, and actually had significant evidence that they
were false, that`s a separate issue. That`s a due process violation where
the law is pretty clear that an officer, if he creates false evidence or
makes false statements to, you know, create the charges against someone and
that person either pleads guilty or is found guilty that that`s a due
process right to a fair criminal proceedings. And that count is also on
appeal.

SHARPTON: Well, how do they explain the blood on the uniform? How do they
explain how he was bloodied?

SCHOTTEL: Well, actually, a couple of the officers in their sworn
deposition testimony said that they didn`t have blood on their uniforms
that night. So, we don`t even think that the actual accusation of the
blood on the uniform is true.

SHARPTON: Wait a minute. Wait a minute. They charged him with blood on
the uniform as the property damage. But then they said they didn`t have
the blood that they charged him about.

SCHOTTEL: That`s correct. That was their deposition testimony that was
presented --

SHARPTON: How do you explain that?

SCHOTTEL: That`s a good question. They had no explanation even at trial.
And you know, we were shocked that even halfway through the trial the judge
said that the actions of the officer didn`t shock the conscience. And I
think that`s a shocking thing to have an officer tack on or pile on charges
based upon false statements.

SHARPTON: Were they charged with perjury?

SCHOTTEL: They were not. I think they should be investigated for it.

SHARPTON: I`m running out of time, but I want the viewers to know that one
of the former officers Kim Tihen who hit Mr. Davis with handcuffs has been
-- allegedly hit him, I should say -- has been elected to the Ferguson City
Council and is now serving a three-year term as one of the five whites on
the city council in Ferguson. Does that make your job more difficult to
prove the case that you`re dealing with a city council member?

SCHOTTEL: No. It really doesn`t have any bearing on our case. And, you
know, what`s going to be looked at in our case, and I just learned that
Officer Kim Tihen was now on the city council. I had no idea. But what
will be looked as is the events on the September 20, 2009, and you know,
how that Police Department was operating because we also did sue the city
of Ferguson with respect to how they were reporting use of force reports,
how they were keeping track of civil rights complaints. And that issue is
also on appeal before the 8th Circuit.

SHARPTON: Well, please Attorney Schottel keeps us informed on how this
proceeds. But I can see why this should catch the Justice Department`s
interest because it certainly caught mine. James Schottel, thank you for
your time tonight. And please keep us posted.

SCHOTTEL: Will do. Thank you, Al.

SHARPTON: Coming up, the story that`s made the country smile. That 13-
year-old pitching phenom, the phenomenal Mo`ne Davis.

(COMMERCIAL BREAK)

SHARPTON: Far away from Ferguson, Missouri, is a 13-year-old girl who has
inspired the nation by playing America`s past time. She`s little leaguer
Mo`ne Davis, playing for Philadelphia. The best pitcher on the team.
Mo`ne already thrown a shut out game in the little league world series.
Last night, Mo`ne and her team took on Nevada with over 34,000 fans in the
stands. Many lining up over nine hours before the phenomenon took the
mound just to get tickets. It was the highest rated little league telecast
ever on ESPN.

Mo`ne`s team ultimately fell short but that hasn`t stopped the buzz. This
week Mo`ne became the first little leaguer ever on the National Sports
Illustrated cover. Professional athletes are taking notice, too. NBA
superstar Kevin Durant tweeted this youngster is striking everybody out and
she`s a girl. I love it. #it`s a new day. Major League Baseball all star
Mike Trout tweeted Mo`ne Davis is straight dominating. Fun to watch. A
baseball reportedly signed by Mo`ne popped up on eBay late last week and
has sold for just over $500 yesterday. Most remarkable about this 13-year-
old, with all the recent fame she still handled herself with poise.

(BEGIN VIDEO CLIP)

MO`NE DAVIS, PITCHER: I never thought that at the age of 13 I would be a
role model. But now it`s real. So always wanted to be a basketball role
model. But being a baseball role model is really cool. And hopefully more
girls will play little league.

(END VIDEO CLIP)

SHARPTON: Mo`ne`s Philadelphia team plays tonight in an elimination game
against Chicago`s Jackie Robinson team. Good luck, Mo`ne.

(COMMERCIAL BREAK)

SHARPTON: As we approach the end of this week, we can be thankful that
there is much more quiet in Ferguson, Missouri. Calmer heads are
prevailing. Monday is the funeral for Michael Brown. His family asked me
to come to Ferguson after his death and I will deliver his eulogy. In this
case and the other high profile cases now like the chokehold case in Staten
Island, we are not prejudging the process. We just want a fair and
impartial investigation.

Maybe not surprisingly, that has caused hysteria from some quarters. One
guy has even managed to have an issue with my point that when it comes to
police overreach, enough is enough. What`s the guy`s point? There should
be more over-the-line policing? But we need to keep focused. Most of the
noise is just that -- an intemperate response from those who don`t want to
see change to occur. And we cannot be deterred in the cause of justice.

Thanks for watching. I`m Al Sharpton. "HARDBALL" starts now.

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