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Kelly File

Marc Morial: Eric Garner decision defied common sense

This is a rush transcript from "The Kelly File," December 4, 2014. This copy may not be in its final form and may be updated.

MEGYN KELLY, HOST: Marc Morial is CEO of the National Urban League --  

MARC MORIAL, PRESIDENT, NATIONAL URBAN LEAGUE: Thank you, Megyn.

KELLY: The nation's largest civil rights organization which founded in 1910. Good to see you, Mark. Thank you for being here.  

MORIAL: Thank you. Great.  

KELLY: All right. So, let's start with this, what is the evidence that what happened to Eric Garner and what happened to Michael Brown has anything to do with race?

MORIAL: Well, it's surprising to me that in both of these instances, Prosecutor McCullough and the Staten Island prosecutor deviated from what most lawyers know and understand -- and I am one, who spent 10 years practicing law including criminal law -- deviated from standard procedure when it comes to managing a grand jury. And that is to present evidence and make a recommendation to the grand jury as to what charge should be brought. 

Then secondarily, both in Ferguson asking in Ferguson not even asking but releasing secret grand jury testimony into the public sphere.  And here in Staten Island asking a judge for the release of such testimony.  The judge for the most part denied that request allowing a release of only a limited summary.

KELLY: All right. It's the release, it's a request by the prosecutors for release of information. That plus the fact in Ferguson the prosecutor did not specifically ask for an indictment. Is that your evidence that these two cases have something to do with race?

MORIAL: In those two cases it's surprising as to why that process would be followed where you have a black victim of police -- of a police killing and a white alleged perpetrator of that killing. And so what I ask is, why were these cases handled differently than most cases?  

KELLY: Do you think it could be the national spotlight that was on those cases as opposed to the race of the policeman and the person who died?

MORIAL: But for a good prosecutor who is experienced, that should not really matter. What should matter is fulfilling the responsibility. Also Megyn I look at the history of the Rodney King case where a state court failed to bring about a conviction. And the federal government brought a prosecution and secured a conviction. Ditto for Abner Louima, ditto for the Danziger Bridge case down in New Orleans. Those are just a few examples, and these are five examples, I'm citing here, no doubt there are others. And I think that there ought to be a careful look at why in these cases do these state grand juries --

KELLY: Okay, but no, but wait. Let me jump in. Because you cite a few examples. But the same examples, opposite examples could be cited the other way. I mean, just doing brief research before we came to air tonight I can site for you several examples of a situation where a black police officer killed a white man, and no charges were brought. So, black cops killing white men, no charges resulted in those cases. Is that racism against whites?

MORIAL: And let me say this though.

KELLY: Let me finish my point and I'll give you the floor. Just today a white police chief who fatally shot an unarmed black man in South Carolina back in 2011 was charged with murder. And we could go on. When there are situations where white cops shoot and kill black men and the white cops are charged, there are few and far between where a white cop is killing a black man, but I can say to you examples where it's happened and the white cop is charged. I can also say to you examples where the black cop killed the white man and he's not charged. What is your evidence that the result in these two particular cases had anything to do with the fact that the dead men were black?

MORIAL: You seem to be really hung up on this question, but let's look at the cases.  

KELLY: I'm not hung up on it. But you're hung up on it.

(CROSSTALK)

You, the Congressional Black Caucus that says black and brown lives don't matter, cops can kill with impunity.  

MORIAL: Megyn, give me an opportunity to finish. I'll listen to you.

KELLY: I'm defending the charge you just made--  

MORIAL: Yes. But you're going to have to give me a chance to finish.  

KELLY: You go ahead.  

MORIAL: So, let's look at these cases at hand. The cases at hand did not yield justice. And that's why I am pleased at the Department of Justice and the attorney general --

KELLY: I get that.

MORIAL: I'm going to conduct --  

KELLY: I get that. You're entitled to your opinion on that and to push for an additional investigation. And that's absolutely -- your right.  But to say that this is a racist situation as Al Sharpton has suggested, as Mayor de Blasio has suggested, as many others have suggested, requires evidence.

MORIAL: What would it take for you to acknowledge -- what would it take for you to acknowledge that race is an issue? Maybe you don't want to acknowledge that race is an issue.  

KELLY: I'd like to know the proof, just tell me.

MORIAL: Let us say this, on this issue we have a difference of opinion. And as Americans we have a right to have a difference of opinion --

KELLY: I'm open minded. I don't have an opinion. I would like to know the evidence.  

MORIAL: -- with respect to how this occurs. And I think there are just too many instances. Yes, there's always other cases and to some extent whether a police officer regardless of his color or her color in a case where they in fact take advantage of a citizen, that case should be handled. Those people if probable cause is met should be prosecuted. And I think the outcry you see, Megyn, is not operating in a vacuum. And it's not just one or two civil rights organizations. This is an organic protest.  

KELLY: Where are the protests -- but where are the protests over the fact that 91 percent of all blacks who were murdered in 2013 were killed by other blacks, seven percent were killed by whites. Ninety one percent of the murders committed against black people were by other black people.  

MORIAL: So let's -- let me tell you about your right wing talking points.  

KELLY: It's not my right wing talking points. Those are statistics and facts, sir.  

MORIAL: If you want to know where the outrage is, come with me on Sunday to a hundred African-American churches around the country where there's a conversation about violence, police violence, black-on-black violence.  

KELLY: Right.  

MORIAL: That just may not be a part of the community that you see where there's outrage, where there's outrage and rallies.  

KELLY: I haven't seen the rallies like this over the black-on-black crime which is 91 percent in New York City and nationally.

MORIAL: The protests are about the lack of accountability by the system, Megyn. When black people take advantage of other black people, prosecutions take place in many of those cases. This is about the lack of accountability. A police officer wears a uniform. They're sworn to uphold the law. They're public servants --  

KELLY: And when a grand jury feels --

MORIAL: -- and they should not be above the law.  

KELLY: Agreed. But when grand juries feel that a prosecution should ensue, it does. I.e. the South Carolina case. But when the grand jury doesn't feel that way and it plays out and they hear testimony like in Ferguson from five African-American witnesses who say the story was as the white cop said it was.  

MORIAL: What about the Garner case? You saw --

KELLY: Why do we have to say it's about race?

MORIAL: You saw the tape in the Garner case, Megyn. Anyone's plain eyes can see --

KELLY: I understand the controversy there.

MORIAL: Anyone's plain eyes can see --  

KELLY: But I would let the evidence --

MORIAL: No. The issue is whether there was probable cause to bring a charge against the officer.  

KELLY: I got that.

MORIAL: That's the legal question.  

KELLY: I'm with you on that. That is a question. But what about race?

MORIAL: Do you agree with me as a lawyer that the standard of probable cause was met in that case? Let me ask you that.

KELLY: The standard of probable cause is very low and I grant you, Marc, that the Garner case is far more controversial in terms of the evidence and why there was no indictment than Ferguson. That's a no- brainer. But the racial component has yet to be established. I am wanting you to establish it for me. All I hear so far is past examples, Rodney King, that's a different case. It was a long time ago. I'm citing you other examples.  

MORIAL: I've cited five cases to you.

KELLY: And I've cited three to you.  

MORIAL: Okay. So is this a game of numbers?

KELLY: You tell me. My audience wants to hear the evidence. They're wondering why we're seeing people in the street condemning -- the law enforcement condemning this is a white versus black thing.  

MORIAL: No one is saying that. The protesters on the street, Megyn, walk down --

KELLY: Mayor de Blasio said this is about racism.  

MORIAL: Many of these protesters are white.

KELLY: Mayor de Blasio said this is about racism, the Congressional Black Caucus said this is about black lives being taken without impunity.  

MORIAL: Megyn, let your cameras go down on the street and what you're going to see is a mixture of tapestry in America protesting in connection with this case. This protest, the outcry you see is not just black people.  The victims may be African-American --

KELLY: I'm not saying it is. It's the message that this is a white versus black thing.  

MORIAL: If you disagree with it, you're entitled to disagree with it.  But let's look at the movement.  

KELLY: I'm not offering my personal opinion, sir. I'm asking for you to establish where race falls into this matter. But I think we've had that discussion, we're going around and around and it's great to see.

MORIAL: Thank you. Have a great day.  

KELLY: Thanks for being here.

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