This is a rush transcript from "The Kelly File," January 5, 2016. This copy may not be in its final form and may be updated.
MEGYN KELLY, HOST: Breaking tonight, a daring rescue operation in one of Afghanistan's most dangerous provinces. After more than a dozen U.S. troops are trapped behind enemies' lines. And some of them are still there, surrounded right now by Taliban forces.
Welcome to "The Kelly File," everyone, I'm Megyn Kelly. It all started with a firefight that left one American dead and two others injured in Marjah, Afghanistan. Rescue teams were sent in, but one of the helicopters could not get away, suffering damage when the rotors collided with a wall. Similar to what happened to a helicopter during the Osama Bin Laden raid. A quick reaction force was then sent in. Managing to evacuate some of our people, including the dead and the wounded. But others stayed behind to secure the damaged helicopter, similar to this one, and that is where they remain right now. Surrounded we are told by enemy forces.
In a province that saw some of the bloodiest fighting of the entire Afghanistan war and became the topic of an entire HBO documentary. In fact, many of the nearly 400 marines who gave their lives in Afghanistan died in this very place. In moments, we'll be joined by three Afghanistan war veterans, including a former Navy SEAL who has taken part in operations like this. Remember, the administration has told us there is no combat operation in Afghanistan anymore.
But we begin tonight with Trace Gallagher, covering the breaking news from our West Coast Newsroom. Trace?
TRACE GALLAGHER, FOX NEWS CORRESPONDENT: Megyn, not even the Pentagon has all the details of what is happening on the ground in Afghanistan, but they know a group of U.S. Special Operations Forces are trapped in a compound, surrounded by the Taliban. And the fight is ongoing. It's happening in Marjah, a town in the very volatile Helmand Province. Marjah was controlled by the Taliban for most of the war. Then at a very heavy cost to U.S. marines, it was retaken by U.S. Forces in 2010. Now the Taliban appears to have regained control. Today's special ops mission was an effort to push back the Taliban.
But U.S. Forces came under fire. One soldier was killed, two others wounded. Two HH-60 Pave Hawk helicopters were sent to evacuate the soldiers, but one of the choppers hit the wall of a compound and was damaged. The other was waved off after heavy ground fire. Now at least a dozen Special Ops Forces have stayed behind to secure the damaged chopper, an AC-130 gunship has been called in to provide air cover, as U.S. troops wait out the night. A U.S. official tells FOX News the situation is, quote, "harrowing," saying, again, quoting, "On the map, there is one green dot representing friendly forces stuck in the compound. And around it is a sea of red, representing hostile forces."
Listen now to the Pentagon.
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And there has been an effort once again, as I mentioned before, to make sure that everything is being done to secure the safety of those Americans and the Afghan Forces that they were accompanying.
GALLAGHER: And we should note a number of Afghan Forces were also injured in today's battle as well -- Megyn.
KELLY: Trace, thank you.
Joining me now with more, Lieutenant Colonel Tony Shaffer who served two combat tours in Afghanistan and is author of "Operation Dark Heart: Spycraft and Special Ops on the Frontlines of Afghanistan and the Path to Victory." Pete Hegseth is an Iraq and Afghanistan war veteran and a Fox News contributor. And Brandon Webb is a former Navy SEAL. And founder of the veteran-run news site SOFREP.com. Thank you all for being here tonight.
Tony, let me start with you on, Colonel.
LT. COL. TONY SHAFFER (RET), AFGHANISTAN WAR VETERAN: Sure.
KELLY: -- on what you're hearing is the latest. Because the situation seemed to be earlier we thought that the troops were out of harm's way, and now it appears that is not true.
SHAFFER: Well, now, the word is, I've got is yes, they are now out. I mean, this has been going on essentially for the past six hours. And my word is -- the word that I just received from the Pentagon sources I have is that our guys are out, thank goodness. It doesn't say that the situation is stabilized. This area, Marjah is the meeting engagement right now, Megyn, regarding the current war. This is the area where even the ISIS folks are going in to take over. This is essentially ground zero for the drug war. And whoever gains control of this region becomes the arbiter of another economic center. So this is no small issue.
At the same time, we are now working with the Afghan government to reconcile and bring a conclusion to the war by bringing the Taliban into the political process, essentially negotiating peace. With that said, what is happening, simply put, we have about 10,000 troops now ongoing. Trace alluded to the Marjah operation to take this in 2010. It took 15,000 troops, 15,000 troops to take Marjah. Now we're trying to fight the entire country with 10. So, I think --
KELLY: But there seems to be, you guys tell me, but there seems to be a denial of reality.
KELLY: Because today the Pentagon, as we have over a dozen guy there surrounded by the enemy. Our producer asked the Pentagon spokesperson, it kind of seems like combat. I mean, I realize the President declares that this war is over. It kind of seems like combat. And they denied it, Pete. They actually tried -- they said well, we know it's dangerous. But they're still denying that we have combat operations going on there.
PETE HEGSETH, IRAQ AND AFGHANISTAN WAR VETERAN: They've lived in a wordsmith alternate reality for a long time now. A year ago they declared combat operations over. And you ask a guy like Brandon Webb whether or not this is combat operation. Special operations forces, indirect fire, close air support, men wounded and one unfortunately killed alongside Afghan allies where they have now lost some of the initiative. And we're doing effectively a recovery operation. They're seeing combat every single day. And this commander-in-chief, by not calling that, is doing them a disservice. Yet they courageously go into the fight with restrictive rules of engagement into hostile zones like this that we fought for before without as Colonel Shaffer points out, the same amount of troops that we had in the past to regain that initiative. So these guys are put in impossible situations, fight courageously and their commander in chief tells them, you're not in combat.
KELLY: I just want to get to the bottom of the, you know, the back and forth Tony and I -- Colonel Tony Shaffer and I just had at the beginning. Because what we were told was that, the situation arose earlier and then they sent help to get the guys out. And our latest information, this is just coming back to me again from our Pentagon producer who is watching the program, his information is that it's not over. That in addition to the nearly dozen Americans Special Ops guys, there are dozens of Afghan Forces as well and some reinforcements in the compound in Marjah, that some guys were evacuated. That the one killed and those wounded. But that the Special Operations team remains there. Do you -- you're saying you have different information from that, Colonel.
SHAFFER: Oh, I am. Now, I'm saying that we still have Afghan forces on the ground. The battle is still ongoing. What I'm saying is that the people who were under fire in the compound, what is now is undertaking, I can't go into all the details I have been told. But basically, we're now trying to figure out how to go back on the offensive. Because right now while we're engaged, we want to go after these guys.
KELLY: Brendan, if they're still there, why would they still be? I mean, why wouldn't the United States military be able to get its people out of there like that.
BRANDON WEBB, FORMER NAVY SEAL: Well, our sources at -- actually confirmed what Tony said. We heard it was small contingent of U.S. Army Special Forces, an A team and some army rangers. And that they were successfully extracted. And I literally got that information as I was sitting in the green room. But as someone who has served over there and lost teammates, you know, my thoughts and prayers go out to the men and the families who lost loved ones over there. And again I think this just highlights what Pete says. Clearly a lack of foreign policy strategy in Afghanistan, the Middle East, North Africa.
KELLY: How so?
WEBB: Well, this administration, if you just look at the results. Is there more civility in the Middle East? More civility in North Africa? And in Afghanistan since 9/11. I think the answer is just clearly no, there isn't. And that just points to a clear lack of foreign policy strategy by this administration.
KELLY: It's amazing, because as we've been watching ISIS in the Middle East and Syria, many believe we have taken our eye off the ball in Afghanistan. And Afghanistan could turn into another Syria if we don't keep our eye on it. I'll give you the last thought on that, Colonel.
SHAFFER: Well, absolutely. That's the issue. Ungoverned space. General Dunford had to convince the President recently regarding the troop levels there. General Dunford has come in doing a troop review of what is going on. The bottom line is this, Megyn, if we depart now, we abandon the investment of blood and treasure in Afghanistan, we will see ISIS take over the centers of economic production, the drugs, the trade trails, everything. And frankly, it will become worse than I believe Syria, even by the fact that they will destabilize Pakistan. Pakistan has nuclear weapons. So, we have to consider the results of Libya and the results of Syria. Not taking positive action. We don't maintain it here, we will see --
KELLY: I'll let you weigh in, Pete. As I see you want to. I just want to tell you again, we are getting different information from you guys. And you guys are, you know, very well connected. I just want our viewers to realize that there is a conflict in the information. Our very well respected guys are getting what we are getting. We'll going to try to get to the bottom because we want to know whether our troops are in harm's way and in a situation right now from which they're having difficulty extracting themselves.
Pete, I'll give you the final word.
HEGSETH: Either way, it underscores what a complex and fluid situation these always are. What I was going to add is that, on layered on top of all of this is we have a president who has always been political about Afghanistan. Former defense secretaries from Gates to Panetta to Hagel have outlined how this -- Afghanistan was always about the good war that was politically good for them as opposed to truly being dedicated to winning it. And as a result you have war fighters flapping out on the edge, putting their lives on the line, and put in precarious situation like this for a mission they don't even know if their commander-in-chief even believes in.
KELLY: Say a prayer for the families of the fallen tonight. I've got to go, guys. My apologies. Thank you.
Well, breaking tonight with General David Petraeus about to testify to the Benghazi Select Committee, three of the heroes that defended the compound from the terror attack there in 2012 are raising new questions about Hillary Clinton's role in all of this.
Brit Hume is here next on that.
Plus, we'll show you what brought President Obama to tears today during an announcement on gun control.
And then Marc Thiessen weighs in on the difference between the President on this issue and on the issue of terror.
Plus, a wildly popular new Netflix show tells the story of how a man and his nephew may have been wrongfully convicted of murder. And while it's already generating calls for a presidential pardon, we will speak with lawyers from both sides of the case about whether that's in order here. The facts and the fallout ahead.
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UNIDENTIFIED FEMALE: Did you kill Teresa Hobock?
UNIDENTIFIED MALE: No, not at all. (INAUDIBLE) I didn't do nothing. Don't make no sense.
(END VIDEO CLIP)
KELLY: Breaking tonight, new developments in the Congressional investigation into the attack in Benghazi, Libya, that left four Americans dead. And the Obama administration facing tough questions on why they did not send help during the 13-hour siege by terrorists. Former CIA Director David Petraeus will testify to the Benghazi Select Committee tomorrow. And former Defense Secretary Leon Panetta appears later this week. As Hillary Clinton faces tough new questions about what she said and how she represented the facts to the family members of the fallen. As the bodies arrived back in the United States days after the attack, those families claim she blamed the attack on a video critical of Islam, which an e-mail she sent just a day or two earlier says she knew was not the case.
Mrs. Clinton says, it was the fog of war that led to the confusion. And last night we interviewed the real-life heroes whose story will be told in the upcoming film "13 Hours."
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KELLY: They choose to believe the families. The video, it was all about a video. And we've heard the families say that. And that's how we kick off the segment that Hillary Clinton, according to the family members, looked at them, at Dover Air Force Base when the bodies came back in the casket and said, we're going to get the guys that made that video. And now when asked who is lying, you or the families, she says, well, it's not me. And of course, she's talking about Glenn's family, she's talking about Tyrone's family, she's talking about Sean's family.
KRIS PARONTO, AS TANTO: And I know Pat Smith, I know Katie Quigley, Glenn's sister. We know Ty's mom. We know what they told us was said and I do know them very well. And Katie has been on news quite a bit telling you what she was told. And I know that they were told it was a video, because that's what they told me. I believe Pat. I believe Katie. I believe Charles Woods.
MARK GEIST, AS OZ: And it's easy. I mean, who would have a reason to lie? Why? Their loved ones just died.
GEIST: Exactly. They have no reason to tell anything but the truth.
(END VIDEO CLIP)
KELLY: Brit Hume is FOX News' senior political analyst. He joins me now. Brit, good to see you. And Oz, on the left, he puts it very well. I mean, it's very simple. These military guys have a way of cutting right through all the bull. Who has a motive to mislead?
BRIT HUME, FOX NEWS SENIOR POLITICAL ANALYST: Well, clearly, it's been a question from almost from day one, Megyn, about whether there was a cover- up of what happened at Benghazi. And whether the whole idea was designed to make the whole incident look like it grew out of some -- grew out of that video to avoid any implication that the Obama administration's foreign policy was failing and leading to -- to what happened in Benghazi, among other things. So that's been a question from the start. And certainly the administration had political reason not to tell the truth about it.
And for all that is said about what was said to those families when they came to receive the bodies of their slain sons and the back and forth about that, there is this additional question, Megyn, which is in my opinion never been satisfactorily answered. And that is this. Five days after this attack, which we now know that on the night of which Hillary Clinton said to the Egyptian foreign minister was not caused by the video and was in fact a terrorist attack, he said something basically the same to her daughter in an e-mail the next day. Five days later --
KELLY: We know it's not the video she said, we know it.
HUME: Right. We know it's not the video. So five days later, her subordinate, Susan Rice, the U.N. ambassador goes on five Sunday talk shows and blames the whole thing on the video. And so we know that the administration and we know that Secretary Clinton knew better at the time. We also know that the two of them, Ambassador Rice and Secretary Clinton spoke before that appearance.
HUME: So that to me -- did she ever come out after that Sunday show, appearance, five appearances and explain, well, now we know better? No, she never did. She never did anything to correct their record.
KELLY: You tell me. Because I think people get confused about. There is so much about Benghazi. This person said that, that person said that. This is very simple. You've got the family of Ambassador Chris Stevens has not spoken. So you have three of the remaining four dead, their families saying she told us over our loved ones' dead bodies that this was all about a video. And now she is on record saying that -- I didn't do it. And suggesting that the family members are lying, Brit. The American people are going to get that.
HUME: Well, look. Well, we can't prove it either way because there is no audio, no video, no recording. But certainly the story the family members tell is remarkably similar to what others in the administration, including days later Susan Rice were saying about the cause of all this. So it all fits in a certain way. And it seems to me it gives those family members' story great plausibility. And that's I think beyond question. We may never know. And it's also this, Megyn, that the damage to Secretary Clinton from Benghazi, which everyone recognizes was at a minimum a security failure and perhaps the policy -- result of a policy failure as well, that may already be baked into what people think about Secretary Clinton, that there was failure there, and that she was not honest about it. And that feeds of course this whole question about her trustworthiness, which has been a liability for her for some time. What we don't know is whether this issue will assert itself further as we get, you know, closer to the voting later this year.
KELLY: Wow! I'll tell you what. You see that movie "13 Hours" which we were privileged to be shown yesterday here at some of our "Kelly File" staff, and you don't see how it could not come up. It is a gripping, gripping, chilling tale of what those soldiers went through. And State Department personnel under her watch. And it is impossible to escape asking -- without asking more questions about why more wasn't done to support these guys and these Americans.
HUME: That movie may well sharpen the issue and renew it. But our experience with this issue, Megyn, that we've seen through the years is these things, these questions about Benghazi do not arrive by themselves.
HUME: That the rest of this media by and large has chosen to ignore this story and play it down. And this isn't going to happen automatically. The candidates who are running against Hillary Clinton or the candidate who eventually runs against her may have to be the one that raises this to get this issue the kind of attention that some think get deserves.
KELLY: Pastel Brit, always a pleasure. Thank you.
HUME: Thanks, Megyn.
KELLY: I'm like in the New York flavor. And he is in the pastel Florida.
Coming up, a tragic turn of events for an Iraq vet who shared a prophetic message about his life just hours before he was killed by a drunk driver. We'll have the chilling story.
Plus, President Obama ended up in tears today during the announcement on gun control. James Rosen is here on how the President is trying to change the rules for gun owners.
And then Marc Thiessen compares the President's message to the message we heard on terror. Pastel Thiessen also here.
KELLY: Breaking tonight, in an ironic twist, gun makers are watching the share price of their stock soar today after a White House announcement on gun control. That was marked by anger, frustration, and even tears. Here is the President earlier today.
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PRESIDENT BARACK OBAMA: First graders at Newtown. Every time I think about those kids, it gets me mad. And by the way, it happens on the streets of Chicago every day.
Our chief Washington correspondent James Rosen is live tonight at the White House. James?
JAMES ROSEN, FOX NEWS CHIEF WASHINGTON CORRESPONDENT: Megyn, good evening. President Obama announced ten items today. They include new licensing requirements for small scale gun sellers, the hiring of 230 FBI employees to process background checks 24/7. Provisions enabling states to share mental health information more easily. And new federal research into gun safety technology. For all the emotion in the President's appearance today, however, at least a couple of things he said appear susceptible to factual challenge.
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OBAMA: A violent felon can buy the exact same weapon over the internet with no background check. No questions asked.
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ROSEN: In fact, according to the National Rifle Association, all licensed dealers must by law perform background checks regardless of whether they sell online, in stores or at gun shows, although it is true that the internet up until now has expanded the opportunities for convicted felons to obtain firearms without a background check.
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OBAMA: We're going to do everything we can to ensure the smart and effective enforcement of gun safety laws that are already on the books.
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ROSEN: Yet federal statistics compiled by Syracuse University show federal criminal firearms convictions have fallen sharply under President Obama by more than 15 percent since 2010, by nearly 35 percent since 2005.
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ROSEN: Agree to the stark plunge.
JOSH EARNEST, WHITE HOUSE PRESS SECRETARY: They are but they reflect decisions that are made by career prosecutors.
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ROSEN: And as for the $500 million the President says some of this is going to cost, well, that will be in his next budget request -- Megyn.
KELLY: James, thank you. Joining me now with more Marc Thiessen, FOX News contributor and former chief speechwriter to President George W. Bush.
Marc, good to see you.
MARC THIESSEN, FOX NEWS CONTRIBUTOR: Good to see you, Megyn.
KELLY: So, as a former communications guy inside the White House, what did you make of the President's emotion today?
THIESSEN: Well, he was very emotional. And I think his emotion was genuine. I think any of us who think about first graders being massacred, our hearts break. That's not the issue so much. The question is, where is that emotion when it comes to terrorism? Where was that emotion, that raw outrage after the San Bernardino attacks? Where was the wiping away of tears and the emotion after the Paris attacks? Instead of wiping away tears, he held a petulant press conference in Turkey where he attacked his critics and said there is not going to be any change in strategy and he dismissed it as a setback. And quite frankly, where was the emotion after ISIS beheaded an American hostage, James Foley. And after announcing it, he went straight to the golf course to play golf. He does not seem to have that same raw emotion, that same sense of outrage when it comes to terrorists.
KELLY: After Benghazi, same thing. He went out to a fundraiser after Chris Stevens, our ambassador was killed along with three others.
THIESSEN: That's right. And after ISIS overtook much of Iraq. He did the same thing.
KELLY: He talked about, he quoted Dr. Martin Luther King, saying, we need to feel the fierce urgency of now, saying we just can't wait. That's why he has to do it himself.
THIESSEN: That's exactly right. But again, he doesn't seem to have that fierce urgency of now when it comes to defeating ISIS. You just reported what is happening in Afghanistan today. He doesn't seem to have a fierce urgency when it comes to defeating the Taliban. His own former Secretary of Defense Robert Gates said that he didn't believe in his own strategy.
KELLY: But what about -- he says the majority of Americans agree with him. I mean, he is pointing to the polls as justification.
THIESSEN: On guns, yes. He does say that. But you know, the truth is, that's not quite right. There was an ABC News poll that came out that showed that 63 percent of Americans say that the reason for these mass shootings is the lack of treatment for mental health. And only 23 percent say it's lack of gun laws. So that's not the case. But you know what? Sixty four percent of Americans think that he doesn't have a fierce urgency of now when it comes to fighting ISIS, including 59 percent of Democrats. So Americans get this. Americans realize that when it comes to fierce urgency, his fierce urgency is to withdraw. It's not to win.
KELLY: Marc, thank you.
THIESSEN: Thanks, Megyn.
KELLY: Well, a new Netflix documentary is generating millions of views online. But the show "Making a Murderer" which is the story of how a man and his nephew may have been wrongfully convicted of killing a young woman is creating an equal amount of debate over whether the story is accurate. Whether the filmmakers got it right.
Coming up, the prosecutor and the defense attorney join us right here.
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UNIDENTIFIED MALE: Law enforcement despised Steven Avery. Steven Avery was a shining example of their inadequacies, their misconduct.
SHERIFF TOM KOCOUREK, MANITOWOC COUNTY SHERIFF: No one ever intended to do anybody any harm by this. We firmly believe that we had the guilty party at the time.
UNIDENTIFIED FEMALE: Welcome home!
UNIDENTIFIED FEMALE: This was one of the biggest miscarriages of justice I ever saw in 20 years (inaudible) and thousands of cases.
(END VIDEO CLIP)
KELLY: Well, that is a clip from the new Netflix documentary series Making a Murderer. It only premiered three weeks ago, and it is so wildly popular that an internet search of the show title produces more than 38 million responses. The series tells the story of Steven Avery, the man on the left and his nephew, Brendan Dassey, who you see on the right. Both, and that is a spoiler, were ultimately convicted of murder. But now the question is did they do it? Or was Steve Avery, in particular, set up because he was pursuing a major judgment over a wrongful conviction on a rape charge for which he served nearly 20 years, wrongfully, behind bars.
Tonight, we are joined by Ken Kratz, who prosecuted the case and by Dean Strang who helped defend Mr. Avery. But first, we go to Trace Gallagher, in our West Coast Newsroom for the story.
TRACE GALLAGHER, FOX NEWS CORRESPONDENT: Megyn, the documentary focuses on Steven Avery's murder conviction and life sentence for the 2005 killing of 25-year-old Teresa Halbach, a photographer who came to Avery's property to take a picture of a car for AutoTrader magazine. But the fact that Steven Avery was once wrongly convicted of rape and spent 18 years in prison before DNA evidence cleared him makes the story even more compelling. In fact, Dean Strang, Avery's defense attorney argues that after he was exonerated and sued the city for $36 million, the city had it out for him. For example, during an initial search of Avery's room, there was no sign of Teresa Halbach's car key. Yet, when two law enforcement officials named in Avery's civil lawsuit searched the room again, they found the key. The defense also recovered a vial of his blood from evidence in Avery's rape case. The seal around the vial had been broken with a hole poked through the top, leading them to claim Avery's blood was extracted and planted in Halbach's car. But Avery's nephew Brendan Dassey was also convicted of participating in the murder and he confessed, giving police the description of the killing in horrific detail, though, he later recanted saying, investigators, quote, "got in his head." During videotaped interrogation shown in the documentary, the learning disabled Dassey is questioned alone, even though he was only 16 at the time. The defense says Dassey was pressured into signing false statements. The prosecution says the teen's family pressured him in to recanting. Prosecutor Ken Kratz also maintains that several pieces of key evidence presented during the trial are not in the documentary. Kratz told People magazine, quote, "you don't want to muddy up a perfectly good conspiracy movie with what actually happened." Among the evidence, the prosecutor said was left out is that Teresa Halbach had been to Steven Avery's house before and was so afraid to go back, she asked her boss for a different assignment. But on the day of the murder, Avery tricked her into coming back by using his sister's name and number. The prosecutor also points out that Avery's DNA, which was not taken from his blood, was found under the hood of Halbach's car. The filmmaker said the prosecutor declined to be interviewed for the documentary, and this morning on the Today show, the filmmakers dropped this. Listen.
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LAURA RICCIARDI, MAKING A MURDERER FILMMAKER: You were contacted by one of the jurors who sat through Steven Avery's trial and shared with us their thoughts, told us that they believe Steven Avery was not proven guilty. They believe that Steven was framed by law enforcement, and that he deserves a new trial.
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GALLAGHER: And now, more than 280,000 people have sign and online petition calling for the pardon of Steven Avery.
KELLY: Ken, thank you very much for being here. So first of all, in this film, which they bill as a documentary, and I know you say it's nothing of the kind, but they, their -- they definitely tell the defense's side, full throatily. What do you say is the most persuasive evidence that the prosecution introduced that this man, Steven Avery, who had been wrongfully convicted of a rape and had been let out, and now is on trial for murder and tried to claim, "Once again, I am the victim here. Once again, I'm being wrongfully prosecuted." What do you think is the most persuasive evidence you had against him that the series makers left out?
KEN KRATZ, FORMER PROSECUTOR, STEVEN AVERY CASE: Well, in my opinion, the most persuasive was the DNA that was found on the hood latch of the victim's car. The victim's SUV is hidden by Mr. Avery and Mr. Dassey. And actually Brendan Dassey, during his confession, tells law enforcement for the first time that his Uncle Steven went under the hood. We know that he did that because he unhooked the car battery, but the fact that he went under the hood caused inarch the crime lab to swab the hood latch, what you have to stick your hand underneath the hood and actually release a mechanism. That hood latch had DNA on it. It came out to be Steven Avery's DAN. But importantly, it was non-blood DNA. Remember, the defense planting theory was that there is a vial of blood that apparently the officers are - -
KELLY: That they took it from the first.
KRATZ: Spewing around.
KELLY: From the first case.
KELLY: That case that Steven Avery was involved.
KRATZ: Yeah, and.
KELLY: And they spilled it inside of the victim --
KRATZ: But --
KELLY: The victim's car to make it look like Avery was in there. Your point is how do you steal.
KRATZ: Right, we.
KELLY: Perspiration evidence.
KRATZ: We were sure of that.
KELLY: I get it. I get it, but one of the things.
KELLY: That people point to is they say, OK, your theory was that they raped her. They tied her up, they raped her and they stabbed her either in the bedroom or in the garage, but somewhere on the property, and there was no trace blood evidence. Why -- these two, these two guys were such brilliant criminals that they managed to clean up all the blood evidence from shooting her and stabbing her? And people don't find that plausible.
KRATZ: Right. The theory of both prosecutions was exactly the same. There wasn't anything that was inconsistent, although, if you watched the documentary, you would think that. She was raped and she was beaten in Steven Avery's trailer, but she was killed in the garage. That's where the shooting happened. That's what Brendan Dassey indicated after she was killed in the garage. She was taken and thrown into her own SUV. That's why her own blood gets in the cargo area of the SUV and they find some pattern evidence and the like. But again, the documentary suggests that this is all a mystery. How did any of this happen? It wasn't a mystery at all. It was all.
KELLY: But why would -- why would her blood evidence?
KRATZ: Tied up with evidence at the trial.
KELLY: Why would the evidence of her blood in the garage, if they killed her there, if they shot her. They stabbed her there.
KRATZ: Brendan Dassey, in part of his three and a half hour confession that the documentary didn't allow the viewers to see, talks about taking bleach, a good bit of bleach and cleaning up the area where the shooting occurred. Bleach is one of the only things that destroys or kills DNA. He and Uncle Steven were cleaning that up. In fact, Brendan turned over to the police, and we recovered, we presented it as evidence, his bleach-stained jeans that he was wearing that day. So you can see the splashes up of the bleach which was absolutely consistent not only with the blood evidence being cleaned up, being removed because of the bleach, but also the statement by 16-year-old Brendan.
KELLY: Finally, Ken, I have to ask you. You were suspended and ran into some legal trouble of your own for unethical behavior with female jurors. Some have said that's a good reason for us not to listen to anything you have to say. To those critics who say that, you say what?
KRATZ: Well, I really appreciate the opportunity to talk about that, because all of this problem which occurred because of or at least partly, because of a prescription drug dependence happened in 2010. That's three years after the making of the documentary. Nothing about that really deplorable behavior occurred during the Steven Avery case, before the Steven Avery case. Nothing at all is at least truthfully or honestly attached to that. I understand that the filmmakers have said well, we'll leave it up to the viewers as to what they're going to make out of that. And of course, I had all the consequences and things that went along with that.
KELLY: I understand.
KRATZ: But I'll tell you what, Megyn. If you're going to try to define the prosecutor for something that he did three years later, then you better be willing to apply that same standard to the defense team, which I understand you're going have them on tonight as well.
KELLY: Well, I know the judge said you acknowledged all of your behavior in the case, and found that persuasive in giving you a shorter reprimand. Ken, thank you for being here tonight.
KRATZ: Thanks very much, Megyn.
KELLY: Up next, the attorney for Steven Avery, Dean Strang responds. And I'll ask him about the evidence that was not in the documentary. That's next.
(BEGIN VIDEO CLIP)
DEAN STRANG, FORMER ATTORNEY FOR STEVEN AVERY: I didn't see them plant evidence with my own two eyes. I didn't see it. But do I understand how human beings might be tempted to plant evidence under the circumstances in which the Manitowoc County Sheriff's Department found itself, after Steven's exoneration of the lawsuit of the Avery commission, of the governor hugging Steven and holding him up as an example of the criminal justice system gone wrong? Do I have any difficulty understanding what human emotions might have driven police officers to want to augment or confirm their beliefs he must have killed Teresa Halbach? I don't have any difficulty understanding those human emotions at all.
(END VIDEO CLIP)
KELLY: That was Dean Strang, former attorney for Steven Avery. Dean is with me now, Dean, thank you for being here. I must say, having watched you in this series, you seem like a very good lawyer to me, and did as much for his client as a lawyer could do. So let me ask you about what the -- and any, you know, your theory is that these cops who screwed this guy over the first time around, and then were getting sued, wanted to get rid of him again. And there is a lot of evidence that the cops misbehaved in this case. Part of what the prosecution argued in the closing was, maybe the cops did plant a cup of things -- that maybe they did. But there is a ton of evidence showing these guys did it, including Teresa's bones in a fire pit outside of Steven's trailer. How do you explain the bones being there?
STRANG: They were moved there. The body was not burned there. That was the stronger part of the evidence. Indeed, the jury acquitted him of mutilating her corpse, in other words, acquitted him of burning the body. I think it was clear and I don't fault the filmmakers for this, but the documentary necessarily omits much of this. The better evidence here from a forensic anthropologist was that an open fire would not have generated enough heat to destroy a human body in the way that those bones were destroyed. And that the bones found in a burn barrel next door. And indeed, in a quarry, a quarter mile away, also were female, also were burned. It's pretty clear the bones were moved to Steven Avery's barbecue pit.
KELLY: OK. What about the fact that.
STRANG: The body wasn't burned there.
KELLY: What about the fact that she was, you know, she was allegedly tortured in Steven Avery's trailer, that she was handcuffed and had leg irons put on her as the rape took place. This is the prosecution's theory. And Steven Avery, this is not covered in the documentary, but was at trial, my understanding. Steven Avery bought leg irons and handcuffs three weeks before the murder. Is that true?
STRANG: None of that was evidence at Steven Avery's trial. You just described the prosecution's theory at the Dassey trial a month or six months later, but none of that was evidence in the Steven Avery trial, and he.
KELLY: But did Steve buy leg irons and handcuffs three weeks before Teresa's murder?
STRANG: I don't recall that, honestly. I really, I don't recall that. And there certainly was no evidence that leg irons or manacles or handcuffs or whatever it was, were used on Teresa Avery or (inaudible).
KELLY: They were introduced in evidence. They were introduced into evidence, I think in the second trial of the nephew. I remember seeing a picture of it.
KELLY: All right. Let me ask you this. The stuff about Steve Avery, you know, having some sort of fixation on her, that wasn't in the documentary, that he called her three times that day to get her to come over, that she - - he liked her, that he was creeping her out. She told her boss she didn't want to go over there anymore, that when he called her that day, he did star 67 so his number would be blocked. I mean, that suggests he was unusually fixated on her.
STRANG: No, it doesn't. It suggests that she had done a good job photographing the car that the family had sold earlier, and now Steven's sister was selling another car and he thought she had been a good photographer. What both the film and Mr. Kratz omit is that, when Teresa called into AutoTrader that day, both of the AutotTrader's employees who spoke with her said, that she told them she was going to the Avery property, out on Avery road. She knew exactly where she was going. No illusions about that. No concealment of that at all. The fact that he tried to protect his privacy with two star 67 calls, I think tells us nothing about who killed Teresa Halbach.
KELLY: What about the sweat? What about his sweat?
STRANG: And did the last call from his phone.
KELLY: I'm going to carry you my part.
STRANG: It wasn't the star 67.
KELLY: I going to carry you over because we're short on time. So we'll try to get another question.
KELLY: And carry you over.
KELLY: But what about that you heard the prosecutor say that his sweat was under the hood of her car. What was that doing there, because cops can't plant sweat evidence.
STRANG: There was no evidence of sweat. There was evidence of DNA transferred, Steven Avery's DNA. The sweat idea is just Mr. Kratz's theory. It never has been anything more than that. The DNA from Steven Avery could have been transferred under that hood, any number of ways. Any surface that had his DNA, his skin or DCI agent's glove, as he testified, could have transferred that DNA to the underside of the hood. It's really much less powerful evidence than the blood would have been for the prosecution.
KELLY: OK. I have several more questions for you, and I appreciate you giving us this time. We'll be right back again.
STRANG: Of course.
KELLY: With the attorney for Steve Avery.
KELLY: Dean Strang is with me now, attorney for Steven Avery. Dean, thank you. So you -- the prosecutor said the reason that there wasn't blood all over that garage where they allegedly stabbed and shot this woman is because they cleaned it up with bleach -- your thoughts on that?
STRANG: Steven Avery can be accused of being a lot of things, but a really good housekeeper doesn't make the list.
KELLY: But what if you just committed a murder? And he said that Brendan Avery -- Brendan, the nephew, had bleach all over his jeans, which was turned over.
STRANG: I have no idea when the bleach got on the jeans. I can't imagine, especially whereas I recall, there was deer blood left in the garage that all traces of human blood would have been removed from that garage by anybody, let alone Steven Avery and Brendan Dassey.
KELLY: Do you think the documentary does the prosecution side, justice. Because the one thing that jump at, and this maybe a small detail in the overall, but they talk about Steven's history of animal abuse and allow his claim, you know, when he was much younger, that he -- I pardon -- I hope the viewers will pardon the description, but he said he burned a cat alive. He suggested it was an accident. He threw it and it fell into the fire. And the truth is he poured oil all over a cat and set it on fire. And so the question is whether this accurately represents his side -- I mean the prosecution's side.
STRANG: You know, Mr. Kratz has been very vocal in the last couple weeks about complaining, essentially that everything he said in 240 hours of evidence over six weeks of trial didn't make it in the three or four hours devoted in a film to this movie, but the fact is that his best arguments, his best evidence made it, and indeed, claims that he made that weren't evidence made it into this film.
KELLY: Well, it's certainly.
STRANG: It was fair.
KELLY: It's -- he's gotten so much attention, people are so fired up about it on the petitions. And we appreciate you giving us your time tonight sir, all the best.
STRANG: Thank you.
KELLY: We'll be right back.
STRANG: To have me. Thanks.
KELLY: What do you think about Making a Murderer? Go to facebook.com/thekellyfile, on Twitter @megynkelly. Let me know what you think. Thanks for watching everyone. I am Megyn Kelly. This is "The Kelly File," good night.
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