Will Mary Winkler's Appearance on Oprah Help her Custody Battle?

This is a rush transcript from "The Big Story With John Gibson," September 11, 2007. This copy may not be in its final form and may be updated.

JOHN GIBSON, "BIG STORY" HOST: Time for big justice. The verdict is in. A judge is allowing Mary Winkler to tell her story on “The Oprah Winfrey Show” tomorrow. She's the woman who shot her preacher husband to death last year and only spent 67 days in jail for committing the crime.

Her former in-laws tried to stop her from talking to Oprah, saying the TV appearance would hurt Winkler's three children. Right now, the in-laws are in a custody battle to keep and adopt those three daughters.

Winkler caused quite a stir by testifying that her husband forced her to wear stiletto heels and engage in kinky sex during their marriage. And now, she is trying to get back at her dead husband's parents.

Winkler filed an emergency motion yesterday to get the custody of her children. So will it help her case to appear on Oprah's court? FOX News senior judicial analyst Judge Andrew Napolitano joins me now.

So the in-laws, the parents of the guy she murdered, her husband, the father of the kids, they have the custody, she's trying to wrest custody away from them.

JUDGE ANDREW NAPOLITANO, FOX NEWS SR. JUDICIAL ANALYST: Right, remember when she murdered her husband, she took her three children and fled from Tennessee to a condominium that she and her husband owned in Alabama.

As soon as she came back into Tennessee, the state arrested her and seized the three children and gave the children to her then in-laws, the parents of her husband. The children have been there for the entire time and now there is this dispute before a judge in Tennessee who is going to get the children.

She wants her children back and the in-laws have moved for what's called termination of parental rights. To cut off her right as the parent, even though she is the biological mother, and give those children permanent custody in the hands of the in-laws.

GIBSON: All right, now Winkler goes on “Oprah,” is this the queen of talk muscling in on the judge?

NAPOLITANO: Well, it would be almost impossible, John, for a judge to give custody back to a woman who murdered the father of the children. Almost impossible. Only in OJ could something like that happen, as we were talking about during the break.

So I really don't think that Oprah will have any influence on the outcome of the case. The flip side of this is, she's a free woman. She has the right to go on “Oprah” like you and I would have the right to go on “Oprah,” except she can't go to Chicago because the terms of probation keep her in Tennessee.

GIBSON: Well now there's no guarantee Oprah will treat her well. She might treat her like James Frye and cut her to ribbons. If she engenders sympathy among a great number of people out there, for Winkler to get her parental rights back and have her children, you're saying no effect on the judge?

NAPOLITANO: Correct, no effect.

GIBSON: Should be?

NAPOLITANO: Should there be an effect on the judge?

GIBSON: No, no, there should be no affect, but might there be?

NAPOLITANO: Well the judge is a human being. The judge is obviously aware of public opinion and judges in Tennessee are popularly elected. They are not appointed for terms or appointed for life like in other states.

GIBSON: So a judge might have to worry about the Oprah vote.

NAPOLITANO: A judge could have to worry about the Oprah vote. However, the law is so clear about when spouse A kills spouse B, A does not get the kids. It would be almost impossible for the judge to change the law in this case. Oprah is a powerful woman. She's trying to get Barack Obama elected president.

GIBSON: If you were the judge, would you have said don't go on “Oprah?”

NAPOLITANO: No, I would let her go on “Oprah,” but she has freedom of speech like anybody else, but I wouldn't let Oprah's opinions influence…

GIBSON: Judge Andrew Napolitano impervious to Oprah's influence. Judge thanks anyway.

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