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Evidence of premeditation, i completely agree with you. i punish myself every single day when i think about the fact that i left my kid in the car for five minutes. when i got back to the car, the car was already warm. her face was flushed. it could have been a tragedy, and to suggest that if a parent is negligent and does make this sort of tragic mistake that the parent should be charged, in this instance i disagree, i think the punishment is enough. >> mark, can you explain the cruelty charge? originally, it was a first-degree charge. >> well, that's what is so bizarre about this. both the f...

>> over the past ten years, we're talking probably over 600 kids have died in this way. so i am just reserving judgment. i am not convinced that this was murder. it could have been an accident. >> mark, you say this is an example of prosecutors using what he called he didn't act right evidence. what do you mean? >> let me tell you something. the idea that somehow you have 11,000 people, the people who are on the scene who saw this and are eyewitnesss to his reaction, and then the officers didn't like his answers to the questions and he didn't act right or didn't do this or that. can you imagin...

You're saying, you're basing this on how other people thought he was reacting, passer byes, people -- so why are they right and the police wrong in this case? >> neither way. i don't think that you can base it on either one. i think that you have here at least what has been reported, they haven't at the hearing today, they didn't bring out anything that said there is any history of abuse. they didn't say there was motive. they didn't say this was a bitter custody battle. they didn't say anything to the sort. there is nothing, so far, at least in the public record to suggest that this was an in...