CNN’s Smerconish Plays Tyre Nichols Video — Then Defending His Claim It’s Not 2nd-Degree Murder

CNN host Michael Smerconish opened his show by playing horrifying videos of the Tyre Nichols attack — then defending his claim they don’t establish second-degree murder charges.

Nichols died on Jan. 10 after allegedly being beaten by Memphis Police Department officers during a Jan. 7 traffic stop. On Thursday, five officers were charged with murder in the case. Shelby County District Attorney Steve Mulroy announced the charges against former officers Emmit Martin III, Justin Smith, Tadarrius Bean, Demetrius Haley, and Desmond Mills — all of whom were fired a week ago.

The attacks that killed Nichols were captured on four horrifying videos that were released Friday night. Minutes after the videos were released, Smerconish tweeted his opinion:

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 of another” – based only on what I have just seen? No.

On Saturday morning’s edition of CNN’s Smerconish, the host devoted his first segment to playing some of the videos, reading some tweets calling him “idiot,” and defending the “nuance” of his assertion:

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 set 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.”

“Longtime 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, quote, “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.” Okay. Now at least we’re having a conversation. 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 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.