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Have done that in the courtroom in a very inclusive way. nobody wants to have the finger pointed at them and say, you're a racist. everybody will react and say, no, i'm not. you can say, we live in a culture that's steeped in a number of racial biases, and that can affect our thinking and lead to implicit racial biases in all of us, including me. it's extremely common. i asked you to really think deeply about that and put that aside in a case where there's a white man alleged to have shot into a car with four young african-american kids. switch the races of the two if you have any doubt in you...

Say this -- >> overcharged. >> overcharged, thank you. but i guess the question is, if she hasn't gone for first-degree, would we be saying she didn't shoot high enough? given that we're talking about murder. >> no, i don't think so. here's why. first of all, there's a great strategic advantage if she just charged him with second-degree murder. she would have had a jury of six in florida, not 12-of course, it's much easier to get consensus from six people than it is among 12 people. that would have been an advantage. and the burden of proof is lower. look, the burden of proof is always on the ...

Right, in which the balancing test. the balancing interest is can you capture them and is there going to be undue harm? will it be too hard? you can malk a scenario in which the test that is laid out in the white paper leads do you the conclusion that under that balancing test you strike it. >> i think -- >> you want to attack the test. but before you start to say that these things are likely to happen, if you had a pramg like this going on -- >> i didn't say exactly. >> even impropable. the key thing to do is not worry about imagining but worry about demonstrated illustrations of abuse and th...

Al qaeda and those are hotly contested issues. we're saying and we've said against the government that at the time that an kwar al awlaki and the others were killed there was no around conflict in yemen and the government instead of saying here are all the reasons why they're saying we don't think the court should look at it -- >> just to be clear, the government's law is to secure state's secrets. >> saying they have no role in assuming it's an armed conflict. >> i don't think you could possibly make the claim that there isn't an armed conflict going on given the kinds of threats that are inv...

Wise or moral, what's the option? >> i think the second prong is important. there needs to be a serious inquiry and feasiblelet of capture. again, i go back to the question if it's a armed conflict. i don't think there's if there's evidence that he's engaged in ongoing attacks and capture is not feasible, i don't think it's as hard of a question. if that information is not accurate and we're talking about operating in a self-defense rubric, i think that there needs to be extremely high demanding standards for determining that there is an imminent threat. >> well, part of the problem is that al...