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Gosnell Defense Attorney Jack McMahon in No Spin Zone

This is a RUSH transcript from "The O'Reilly Factor," May 23, 2013. This copy may not be in its final form and may be updated.

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O'REILLY: "FACTOR Follow Up" segment tonight. As you may know, as you may know, 72-year-old abortionist, Dr. Kermit Gosnell, sentenced to life in prison last week for murdering three babies in Philadelphia.

Awful crime, and one that hurts the entire country. I recently spoke with Gosnell attorney, Jack McMahon.

(BEGIN VIDEOTAPE)

O'REILLY: So, counselor, after the verdict came in, you were complimentary to the jury. So, I guess you're convinced your client was guilty.

JACK MCMAHON, CRIMINAL DEFENSE ATTORNEY FOR DR. KERMIT GOSNELL: No. I was complimentary to the jury because they did their service. They worked hard, two and a half months, two weeks of deliberations.

They came in as civic duty, and they did their duty.

(BEGIN VIDEO CLIP)

And they were conscientious. I mean, they --

O'REILLY: But they must have made the right decision or you would have criticized them for making the wrong decision, right.

MCMAHON: No. That's not true at all. I don't criticize the decision that they make because whatever they make is the right decision. That's the verdict, that's the nature of the verdict in a criminal case.

O'REILLY: Do you believe that -- do you believe that your client was guilty.

(END VIDEO CLIP)

MCMAHON: I don't believe that the Commonwealth established that the three fetuses, infants, were born alive. That was our argument all the way through.

I believe that. I think that you have to remember, these were injected with the Joxon, a lethal drug, in utero. And that the purpose of that is to cause fetal demise.

O'REILLY: All right. But you know that 26 weeks is the limit for this kind of a procedure. So, guilty either or, right.

MCMAHON: Actually, it's 24 weeks. And there is no doubt about that. I will agree with that 100 percent that Dr. Gosnell did do abortion --

O'REILLY: Why did he -- why did he do that.

MCMAHON: -- on a limited basis past 24 weeks.

O'REILLY: Why did he do that.

MCMAHON: Why.

O'REILLY: Yes.

MCMAHON: Why past 24 weeks.

O'REILLY: Yes.

MCMAHON: Because -- well, first of all, there were very small number of then. And they've --

O'REILLY: It doesn't matter. Why did he do one. Why did he do any of them.

MCMAHON: Basically because a girl would come in crying with her mother, 13 years old, had no place else to turn, would beg him. And he felt that it was the right thing to do.

O'REILLY: So, it was -- he did it for humanitarian reasons.

MCMAHON: He did it to help that particular girl at that particular time in her life, yes.

O'REILLY: And didn't have any conscience about the children that he aborted?

MCMAHON: Well, I can't speak for Dr. Gosnell.

O'REILLY: But didn't you ever talk to him philosophically before you took the case. Didn't you want to know who you were representing.

MCMAHON: Yes, I know who I was representing. And he was -- all the times I was with him for two and a half years, he was nothing but a gentleman. And Dr. Gosnell --

O'REILLY: But didn't ask you him, "Hey, did you feel bad for the kids that you terminated." Because he got charged and convicted on these three but there are hundreds that he did. According to his --

MCMAHON: No, he did not. He did not do that. He did not do hundreds.

O'REILLY: No, according to his people, it was hundreds, according to people who worked with him. You know that.

MCMAHON: No, that's not true. That's not true at all. I mean, he was convicted of three. He was found not guilty of five.

So, the jury has obviously considered all the facts of the case. And Dr. Gosnell didn't kill, in his mind, --

O'REILLY: In his mind.

MCMAHON: -- lives, human, babies.

O'REILLY: Yes, I would just like to know what in his mind that he was doing. Because these babies will never ever exist on this planet, so I'd just like to know that.

MCMAHON: Well, they were dead before --

O'REILLY: Yes because he killed them.

MCMAHON: -- they were dead before he did anything to them.

O'REILLY: Because he killed them.

MCMAHON: No, they're not. That was abortion. That was the abortion process. There's a big difference between the abortion process and killing.

O'REILLY: OK. But abortion is killing the fetus. Abortion is killing the fetus.

MCMAHON: Well, it's legal. It's legal, Bill, and you know that.

O'REILLY: It doesn't matter whether it's legal. He still killed them. He killed them. It doesn't matter if it's legal, he killed them.

MCMAHON: Well, it's legal.

O'REILLY: I have one more question for you.

MCMAHON: We're talking about crimes.

O'REILLY: No, I'm talking about philosophy. One more thing. You injected race in this.

And you said, the only reason that this might be happening is because the man is black. Do you stand by that.

MCMAHON: That's not what I said but, yes, I said it was a racist and elitist prosecution. And I stand by that.

There's people doing abortions all over the place and he was singled out, I believe, because he was African-American --

O'REILLY: Really. You think the Commonwealth of Pennsylvania went after him because he's African-American? They don't like African-Americans in the Commonwealth.

MCMAHON: I don't think so much African-American. I think it was because of the community that he served. It was a poor urban community and --

O'REILLY: So, they don't like that community? The Commonwealth doesn't like that community, so they're going to get people in there?

MCMAHON: If you think that there's no racism in the criminal justice system, you're a fool.

O'REILLY: Oh, I might be a fool because I always go on provable facts, not speculation.

MCMAHON: I do also.

O'REILLY: All right. If you have provable facts that the Commonwealth of Pennsylvania is targeting doctors or anybody else in that community, I would like you to give them to me.

Because that's right and I will do a story on it. Counsel, we appreciate your time very much. Good night.

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