Leaked Freddie Gray autopsy report raises new concerns in case

This is a rush transcript from "The Kelly File," June 23, 2015. This copy may not be in its final form and may be updated.

MEGYN KELLY, HOST: Breaking tonight, a new bombshell in the criminal case that touched off riots in cities across this country. As one newspaper publishes what it claims are the details of the autopsy report in the death of Freddie Gray in Baltimore revealing that the medical examiner concluded this death was a medical and legal accident and only ruled it a homicide because she was told the police failed to belt Freddie Gray into that police van.

Welcome to "The Kelly File." I'm Megyn Kelly. Just hours ago, the Baltimore Sun published what it is calling the first details from Freddie Gray's autopsy report. Key findings include the conclusion that Gray suffered a significant high impact injury inside the police van. But the report is riddled with suppositions and guesses and there are real questions about whether this can serve as the basis for a murder charge.  In addition and this is significant, there are now angry press releases from both the state's attorney's office and the defense attorney's over who leaked these details to the Sun and why.

Tonight, we have some of the smartest folks on this case for our lead.  Dr. Michael Baden, who has testified in dozens of high profile criminal cases. Criminal defense attorney and FOX News legal analyst Arthur Aidala.  And former prosecutor Mark Eiglarsh.

Thank you all for being here. Dr. Baden, let me start with you. The Sun does not publish the autopsy report. They say that they have spoken with sources who have seen the report and have the information. The only people who we know have it are the state's attorney and the medical examiner. The state's attorney denying it was their office. So they are suggesting perhaps I guess the medical examiner's office spoke with somebody. Why are there so many suppositions in it? You tell me whether this is normal. Because I went through it and I just want to show the audience. Okay?

The medical examiner surmised that he meaning Freddie Gray may have gotten to his feet. And then she goes on, it is possible Gray was hurt while lying on the floor. His body likely couldn't have moved into that position. Gray's most significant injury most likely occurred after the second and before the fourth stops, possibly though before the third. The medical examiner surmised that Gray could have gotten to his feet and on and on she goes. Is this unusual?

DR. MICHAEL BADEN, FORMER CHIEF MEDICAL EXAMINER OF NTC: Yes. It is unusual because medical examiner is concerned about the autopsy findings.  What do the spine bones look like in the neck? What does the spinal cord look like? But more important than that, the autopsy has to be fully released so that we are not looking at somebody's spin on it. But also it doesn't stand by itself. Freddie Gray was in the hospital for seven days.  They did a lot of work on him at the hospital.

KELLY: Uh-mm.

BADEN: They evaluated him, they did tests on him on the day he came in. Seven days later when he deceased, when he's dead, an autopsy and things have changed a bit. Maybe he was operated on. We don't know about it depending on the injury. They have all kinds of neurological tests to see what damage was done at the time he came into the hospital.

KELLY: It's a good point. The autopsy, you know, in these murder cases is typically all you have. Here they had a live patient in the hospital for days.

BADEN: Right.

KELLY: And that is not mentioned anywhere.

BADEN: That's right.

KELLY: But Mark, I ask you, we now have the medical examiner reportedly saying this was an accident. And the reason we get to homicide is because, well, the cops didn't belt the guy in. But then we have a report that goes on and on about, well, this may have happened or it may have happened a different way. It could have been this way or could have been this other way. How do you build a murder case off of that?

MARK EIGLARSH, FORMER PROSECUTOR: Well, I tell you how I build reasonable doubt every single time on the defense side. I read maybe, probably, most likely, I'm thinking reasonable doubt, reasonable doubt, reasonable doubt because the state must remove every reasonable hypothesis of innocence. So you can assume that it is possible then that he could have been injured so severely before he got into the van causing partial, partial situation where he cannot breathe, partial paralysis it was. And also in the van, maybe this happened, possibly this happened. Again, all you have to do is create reasonable doubt and you don't get that charge.

KELLY: Arthur, I don't understand how they can get -- I mean, I get the theory is that the cops, they are guilty because they didn't belt him in. So, whatever happened in that van it is on them. But they're going to, who knows what they're going to argue. The original report was that the second prisoner who went to that van, heard Freddie Gray jumping around and it sounded like he was trying to hurt himself. What is the defense going to do with that kind of an argument when they have a medical examiner who has to tell the truth which is, I really have no idea what happened.

ARTHUR AIDALA, FOX NEWS LEGAL ANALYST: Right. Well, and also, let's break down the charges a little bit. The driver is charged with depraved heart murder which is the highest count in second degree murder. Megyn, I submit that even if you believe everything that the medical examiner puts in here. It still doesn't go to depraved heart because what she is saying is that it's the omission to act. Depraved heart in law school is like, it is New Year's Eve, there's millions of people at Times Square and you do something. You test your gun and fire in the middle of the crowd even though you don't want to kill anyone. That is acting with a depraved heart. Here they are saying it is an accident but because aid wasn't rendered and there was an omission of aid, that is a depraved heart.  Meanwhile, we don't even know Megyn if the driver knew the state of a prisoner behind him ostensibly there's a shield behind the driver.

KELLY: And they don't know when the injury took place.

AIDALA: Occur. Right.

KELLY: They are saying it most likely occurred after the second and before the fourth stops. But if it occurred possibly before the third stop. What if it occurred after the fifth stop when nobody had seen -- I mean, like, I don't see how the prosecution has a beyond a reasonable doubt murder case here.

AIDALA: They don't.

EIGLARSH: Megyn, Megyn, they don't. Let me just add to what Arthur is saying. If they can prove that the driver slammed on his brakes intentionally knowing that this guy was in a very, very vulnerable position. We all agree that he was on his belly, hands behind his back.  And that is on them. That is a problem the officers is going to have to answer for. But unless there is some type of intentional slamming on the brakes to then recklessly disregard his life then --

BADEN: Megyn, what we are doing is reacting to the newspaper's spin.  We have to see the facts. The autopsy as was written and all of the hospital records that permits interpretation of the autopsy.

KELLY: But Dr. Baden, there is not going to be anything in the autopsy that conclusively says, this is when the injury took place. I mean, you know that's not going to happen.

BADEN: But that may be in the hospital records.


BADEN: It's interesting that there is no reference in that whole newspaper article to what happened seven days in the hospital. That is going to be very important to identify. People get injured and have neck injuries and can be partially paralyzed. They don't have to die right away. Was his neck injury when he is helped into the van?


AIDALA: Here is the question for the jurors about the driver of the car. Did he know or should he have known? Was it reasonable for him to know? Reasonable for him to believe that him driving and decelerating -- that is what the autopsy is saying, act of deceleration his act was likely to cause serious injury or death. Come on. People ride around without seat belts all the time. Yes. He is vulnerable. Is he going to cause death? Maybe he could cause an injury.

KELLY: And they had just implemented this policy of requiring the seat belts days before this arrest, days before. And so far we are not even sure the prosecution can prove that that policy was communicated to these particular officers. Go ahead, Mark.

EIGLARSH: In light of how prejudice already the potential jury pool assuming it stays in that jurisdiction are, they may make the finding that first of all, there were no windows at all in that van. So if Gray got to a standing position, he couldn't see where the van was going. Secondly, the driver at some point, it's reasonably foreseeable to him that he could be decelerating and that could somehow place him in even a more dangerous position. I can see jurors wanting to slam them with the highest charge even though legally I don't think it gets there.

KELLY: It just stays on the -- of physics, you know, I mean, that's why you go on a bench trial.

AIDALD: That's why you wait the jury and you go --


KELLY: Right. But Dr. Baden, I mean, the autopsy seems to be saying, at least the reports of it are, they don't believe that the injury happened outside the van. They believe it was --

BADEN: Yes, but that's not based on the autopsy.

KELLY: Okay, go ahead.

BADEN: That is based on speculations as to what might have happened.  It is very unusual to get this kind of injury from that kind of a deceleration. Period. Now, maybe it can happen but very few cases like this where somebody gets a fatal cervical spine injury from deceleration in the back of a van.

KELLY: What do you make of the fact Dr. Biden that in the report -- in the report they are talking about the fact that Freddie Gray was supposedly on his knees after the alleged injury, he on his knees slumped over on a bench. Could that be possible with a spine injury?

BADEN: Yes. Of course, it can be. We have all kinds of people who have spine injuries who are in wheelchairs, can do things, who can move their arms, who can move their legs, partially. It depends on what the actual spinal cord showed at the time of autopsy --

KELLY: Right.

BADEN: -- and more important, what it showed when it was examined during -- while he was alive on the first day that he comes into the hospital.

KELLY: I got to go. But I have to ask you. I have to ask you, the lawyers, about this vogue article on Marilyn Mosby, the prosecutor in this case. Ana Leibovitz does the photoshoot. Marilyn Mosby comes and says, she doesn't regret one word she said when she stood before the public and said, I hear your calls for no justice no peace, this is our moment.  Doesn't regret one word as she does a vogue photoshoot.

And I ask you guys, Arthur and Mark quickly, is this appropriate?

AIDALA: Absolutely. Not the way I was raised. As a prosecutors, the prosecutor I work for, I mean, it is the opposite. She is doing the absolute opposite. You are supposed to be as professional as you possibly can. A shoot in "Vogue" magazine is not prosecutorial.

KELLY: Uh-mm. Mark, quickly.

EIGLARSH: Yes. It doesn't seem like her number one agenda is to seek the truth. And that is the concern of everybody.

KELLY: It's not time to be, you know, it's not your moment in the Sun. Wait until the case is over.


KELLY: At least.

EIGLARSH: Correct.

KELLY: And if we get the freedom of six people, six cops on the line.  Good to see you both. All three of you. Thank you.

BADEN: Good to see you, Megyn.

KELLY: Also tonight, a left wing group has published a list of a dozen women who have challenged radical Islam and they have challenged these women. Wait until you hear what they are labelling these women. And some are saying what they have effectively done is create a hit list for would-be jihadist.

We'll speak with someone who says, he was targeted after the same group pulled a similar move about his organization a couple of years back.

Plus, with new calls out to crack down on hate groups, a free speech advocate with a warning about where that will likely lead.

And then the White House today defended the President's controversial comments on race by saying he is trying to start an honest conversation on the issue.

Brit Hume says, that argument does not hold water. He's here next to explain why.


PRESIDENT BARACK OBAMA: Racism, we are not cured of it. Clearly. And it's not just a matter of it not being polite to say (bleep) in public. That's not the measure of whether racism still exists or not.




OBAMA: Racism, we are not cured of it. Clearly. And it's not just a matter of it not being polite to say (bleep) in public. That's not the measure of whether racism still exists or not.


KELLY: Well, that was President Obama in an interview released yesterday with digital radio host Marc Maron. And today for the second straight day, the White House had to defend the President's decision to use one of the most racially charged words in the English language. The President's senior adviser saying her boss is glad that his words triggered this honest conversation on race.

Brit Hume is our Fox News senior political analyst. Brit, did it?  Are we there?

BRIT HUME, FOX NEWS SENIOR POLITICAL ANALYST: No. And we're not going to get there by virtue of what the President said. First of all, let me make -- I don't have any problem with the President saying that word because he didn't really use the word. Using the word implies that you label somebody with that term. That's what the problem with that word is when people use it as a label. As a hateful epithet. That is not the context in which he used the word. He was mentioning the word. He wasn't really using it. But we are so concerned with being careful not to be labelled racist ourselves that we on this network and as far as I know every other network won't even allow him to be heard saying that.

KELLY: Uh-mm.

HUME: We bleep it out which in some ways I think is a little absurd.  But it illustrates the problem that the President claims is trying to exist. He wants an honest conversation about race but he's dealing with a people who are so afraid of being labelled racist especially white Americans because they are the ones that are most often been accused of this and in many cases for a long time it was a legitimate charge. Because racism was institutionalize in America. It was built into laws, it was permitted, it was tolerated. It was culturally acceptable. That is no longer true. The institutionalization of racism has been largely obliterated even Hillary Clinton says that.

KELLY: The President doesn't seem to agree. I mean, he keeps making comments. And he just said this the other day. He said, look, things have gotten better. Don't tell me, to the young people of America that they haven't from the '50, '60s, '70s and so on. But he went on to say, but the legacy of Jim Crow, discrimination enormous, every institution or our lives, that cast a long shadow. That is still part of our DNA. We are not cured of it.

HUME: Well, look, Doctor, Professor Dr. Obama may say that and he may to some extent be right about that. But what troubles me here is, he and other liberals periodically call for an honest conversation about race.  They don't really want an honest conversation about race. In fact, the issue of race has been enormously beneficial to President Obama. His defenders often say that he is treated the way because he is black, the way no other president would. But the things that have been said about other white presidents belie that.

In addition to that, I think Americans by and large were impressed with Barack Obama and wanted to see him move up in the world and become president in part because he was black. And I think his race has been an asset to him politically and otherwise perhaps. And when he says he wants an honest conversation about race and he uses the "n" word or says the "n" word without ever really using it and we are so afraid of being accused of racism in America that we won't let him be heard saying that.

KELLY: Uh-mm.

HUME: That gives you an idea of the climate. That gives you an idea and why nobody wants to have that conversation because if you for example held a view that racism is kind of a human characteristic. That people of all races share it and that you can never really wipe it out that all you can do is to try to create a society in which it is institutionally impermissible, that is culturally unacceptable and that it is regarded as a form of hatred which I think we are on a long way to doing. I think people who want to make that argument may be afraid that they would be accused of being racist for making it.

That's the problem we have. The great triumph for the civil rights movement was making racism politically culturally and otherwise unacceptable in America. But it placed the cudgel in the hands of those who would exploit it ala Al Sharpton and others. Al Sharpton by the way whom the President consults with -- consorts with, who use that for all sorts of racial demagoguery and something bouldering on black male.

KELLY: But is it just race? Because the President, he seems to cast this judgment on the American people about how we, you know, it's part of our DNA still. Jim Crow is part of our DNA still. Our DNA. I think a lot of people would say, it isn't. He says it is. And then in the same day he is speaking to a group of Muslims and talks about how he lamented the distorted impression that many Americans have of Muslims and stress that we need to be much more conscious about religious tolerance towards Muslims.  He is not so stressing about the religious tolerance towards Christians when they tried to express their deeply held views. But he wants tolerance towards Muslims because he feels that we the American people have a distorted impression of them.

HUME: Well, look, he seems to be an advocate against bigotry in certain cases but not all. He doesn't seem to be too preoccupied with anti-Christian bigotry for example. He seems to some extent I would say, intolerant of the way that Christians practice their faith, this whole case against the little sisters of the poor being an example of that with the administration, you know, they're fighting the little sisters of the poor in the Supreme Court. This is the kind of thing that goes on. And I would say about that Megyn that the President has been too selective in this for him to have credibility on the issue.

KELLY: It's interesting to hear the messaging. And we have got, you know, some folks talking out of both sides of their mouth and we will speak about that in the next segment and explain what we need. The "New York Times" came out last week and said, any hopes of a post racial era now seem fanciful under this president.

HUME: Well, under this president, yes, and one has to ask the question to what extent he is responsible for that. Whether his conduct in office in the way he's handled the issue has made things worse, not better.

KELLY: Brit, great to see you.

HUME: You, too Megyn.

KELLY: Well, there is outrage in Oklahoma tonight after an illegal immigrant runs down a beloved TV sportscaster. See why this could be charged as a murder case.

HUME: Plus, we have big developments in the search for two escaped killers. Their relationship with the woman who helped them and what her husband is saying about the whole thing. Stay tuned for this.


LYLE MITCHELL, HUSBAND OF JOYCE MITCHELL: I was in over my head and I was scared. And she said, "There's something else I have to tell you." I said, "What's that?" She said, "Their plan was they want to kill you."




CORNELL WILLIAM BROOKS, NAACP PRESIDENT: We have to allocate resources to address these hate groups and these hate crimes. We also need vigorous prosecution and vigorous investigation of these hate groups and the resources to do so.


KELLY: Well, that was the president of the NAACP calling for a new government crackdown on hate groups, even prosecution of them in the wake of the racially driven mass murder of nine African-Americans in a church in Charleston last week. But is that really where we want to go?

Greg Lukianoff, President and CEO of the Foundation for Individual Rights in Education and author of "Freedom From Speech." Greg, thank you for being here. That is the question. It sounds noble. You know, a racist skin head type murders nine African-Americans and the response is we have to crack down on the groups that hate African-Americans, that hate in general with prosecution and investigation. And you say?

GREG LUKIANOFF, FOUNDATION FOR INDIVIDUAL RIGHTS IN EDUCATION: That hate speech is not -- and there is a lot of misinformation on this. Hate speech is protected speech in the United States. What you go after is violence. What you go after is conspiracy to murder. But if you go after just opinions and expression of opinions we dislike you are not only doing something that is flatly unconstitutional, you're doing something that is deeply unwise.

KELLY: And to those who say, well, Greg must be in favor of the white supremacists. Greg must be sympathetic towards the skin head cause?

LUKIANOFF: Yes. And that seems to be is the way, some people argue in the U.S. right now. I have defended throughout my career. I deal with free speech on college campuses. And I have defended people all across the political spectrum. And as soon as you actually allow people to start policing, people for their opinions, practically no one is provocative or interesting to say.

KELLY: Do you find it interesting because I was talking with Brit about a possible double standard, we -- tomorrow night we are going to air an hour long special on the beheading of an American woman in Oklahoma and the attempted beheading of her coworker. We have an exclusive interview with the coworker who is finally for the first time in nearly 10 months speaking out about her ordeal. And talking about what happened to her. By a man who had self-radicalized who had become a radical Muslim online. And listen to what the same head of the NAACP had to say about why we need to expand it from the individual to the group. Listen.


BROOKS: This young man was indoctrinated, radicalized if you will with an ideology of white nationalism or racism. And so, the point being here, is we have to look at not only these individual acts of brutality.  We also have to look at the atmosphere from which it emerged. And we have to address that.


KELLY: Okay. So if you make that same point about the Muslim community, those in the Muslim community who are becoming radicalized and posting pictures of Bin Laden and talking about the value of Jihad, you get called a bigot. If you say you have to expand it from one man's act and take a look at a community you get called a bigot. But if you say it in this context, it is fine because it is clear that the white supremacists are bad.

LUKIANOFF: Yes. One incredibly frustrating thing about being a First Amendment lawyer is the double standards are everywhere. People are like, oh, I want to go after these people with this opinion but people who essentially have the exact same opinion but if I politically like them more, oh, no, no, that's completely out base. And that's why our founding fathers were so smart to have no exception to the First Amendment. That opinion must always be productive.

KELLY: So, the white supremacists are allowed to say hateful things when it translates into actual -- not just inspires hatred in somebody.  But when it leads to direct -- I mean, how close would their hatred have to be linked to a murder to take it out of First Amendment realm?

LUKIANOFF: Well, I mean, we are not that limited when it comes to conspiracy to commit a crime. You know, if you take any -- furthering a violent crime, then it's a crime. And this is the big misunderstanding, the big dangerous misunderstanding of free speech. Free speech is an alternative to violence, it's a way of resolving disputes without resort to violence. And I think it is insane sometimes that people actually think, oh, let's eliminate free speech. Yes. You know, how we use to resolve disputes? Coercion and violence.

KELLY: And it may be beneficial to know exactly where the haters are.  It is kind of beneficial to have them speaking out about it.

LUKIANOFF: You hit the nail on the head. That is the one thing that people do not understand about freedom of speech. It is completely naive to think that you are safer to not know if there is a Nazi in the room or someone who is a bigot or who wants to kill you. It is incredibly naive to think we can just end racism by not saying, hey everybody, just don't say racist things in public.

KELLY: Yes. Proceed at your own risk is a better policy. Greg, great to see you.

LUKIANOFF: Yep. Thanks for having me.

KELLY: Well, remember to tune in tomorrow night for our exclusive "Kelly File" interview with Traci Johnson, the sole survivor of an attempted beheading in Moore, Oklahoma. Here is some of that interview.


KELLY: So, he got to you and what happened next?

TRACI JOHNSON, ATTEMPTED BEHEADING SURVIVOR: He started slicing my neck. He cut a hole in my face. He cut a hole in my right index finger and wouldn't stop. And I'm screaming for help. And didn't think anybody was going to come around.


KELLY: That's tomorrow night at 9:00 p.m. Eastern. That man who attacked her had self-radicalized at a controversial mosque, he then posted very controversial pictures on his Facebook page of the burning Twin Towers calling for Jihad, celebrating beheadings and then he went into that food processing plant at which he worked with Traci and started yelling Arabic phrases as he cut a woman's head off and then tried to cut a second woman's head off.

That second woman joins us with the story and her reaction to this case not being treated as terror tomorrow night only right here 9 p.m.

Well, new controversy tonight with the folks who grouped Dr. Ben Carson, alongside the KKK as a hate group. Up next, why they are now targeting a dozen very well-known women for speaking about radical Islam.  Plus, an illegal immigrant is behind bars tonight, facing possible murder charges in the death of a TV sports caster. We will show you why this case is generating so much outrage.


UNIDENTIFIED MALE: From the world headquarters of Fox News, it's "The Kelly File," with Megyn Kelly.

KELLY: The Southern Poverty Law Center is making news tonight after publishing a controversial new list. This is the same group that once put Presidential Candidate and famed Neurosurgeon, Pediatric Neurosurgeon Dr. Ben Carson on the same extremist list as the KKK. This time the SPLC has compiled a run down of what it says are "the most hard line anti-Muslim women activists in the country", and among them, some very familiar faces.  Our next guest says his group was targeted by a crazed gunman after this same group, the SPLC did something similar a couple years ago. Tony Perkins, is the President of the Family Research Council, he's with us now by phone because we had some problems with his satellite hook-up. Tony, thank you for being here, and so the Family Research Council was dubbed an extremist hate group by the Southern Poverty Law Center. And then the man who came in and shot up your organization and shot a guard later said what?

TONY PERKINS, FAMILY RESEARCH COUNCIL PRESIDENT: Well, he actually confessed in Federal Court that he received the information on who to target, and where to find us through the Southern Poverty Law Center with their help, using their website. Three years later, there is rarely a day goes by that those who walk through our front door under the words of state, family and freedom are not reminded of the SPLC-inspired shooting.  It takes time for people to get through the trauma of seeing one of their co-workers shot, who literally risked his own life to save his co-worker.  This guy had over 100 rounds of ammunition. We are seeing the same type of thing play out, Megyn, in South Carolina. The key to overcoming the trauma is forgiveness. I think that's what is important is that we see these folks are forgiven. We forgive and hold no bitterness. But I do believe we have an obligation to speak out and prevent organizations like this from putting other people at risk, like they've done to these women. They put them on a hit list.

KELLY: That is exactly what judicial watch said, they came out, described this as a starter kit for Jihadists. If you look at even the photos, the drawings, the artists' renderings of the women, we didn't have a full screen made so apologies for this, but this is just sort of my rough notes that my producers gave me. You can see. Look what they do. They try to demonize the photos of people like Rajiv Gabriel, Anne Coulter, you can see her there and so on trying to make them look as terrifying as possible. And real damage could come to these women as a result of this portrayal and this imagery they are trying to paint.

PERKINS: You want to talk Megyn, about a war on women? The Southern Poverty Law Center has created this Jihadist list by marking these 12 women, and these 12 have something in common. Yes, they are all women, and they are all conservative. And they all have spoken out not against Islam, but against radical Islam that abuses and kills women. Some of these women like Rajiv have experienced this first hand. She grew up in Lebanon. We have former police officers, investigators, CIA officers who know what they are talking about. And I have to ask this question, what legitimate civil rights organization would try to intimidate and silence women? They wouldn't. That's something the Taliban would do.

KELLY: Tony, thank you for being here. I want to apologize about the technological issues. Joining me now to react is Richard Fowler, a Nationally Syndicated Radio Host. Richard, is this right?

RICHARD FOWLER, NATIONALLY SYNDICATED RADIO HOST: I think what The Southern Poverty Law Center is trying to point out was that hatred no matter where it is wrong. I think Martin Luther King said it best. Hate cannot drive out hate. Only love can do that. And I think that is what the Southern Poverty Law Center tries to do in all their research, whether they speak out against bigotry or they speak out against hatred. But also talk about teaching tolerance, and I think that's what's missing from conversation.

KELLY: Tolerance -- let's say the Christian beliefs that Dr. Ben Carson held before they labeled him an extremist, and put him on their hate list?

FOWLER: But Megyn, let's think about why they called out Dr. Ben Carson, they called him out because of his homophobic views of the LGBT community. That's why he was called out.

KELLY: About his biblical views that he holds as a Christian. They put him on a hate list, Richard, the man who spent his life saving the lives of little children.

FOWLER: I get that. I understand where you are coming from.

KELLY: Counts for nothing. He is a hater. He is an extremist.

FOWLER: The larger point here Megyn, is what the Southern Poverty Law Center is trying to say. If you can believe whatever you would like to believe, I think our constitution allows us to do that. But when you use the cloak of religion and your influence to hate against an entire group of people, because you feel that it is ok, that is downright wrong.

KELLY: And so would you say the same about radical Muslims, self- radicalized Muslims?

FOWLER: Exactly. I would say the exact same thing. But there is a distinction -- I think we don't make this enough in the media...

KELLY: What's that?

FOWLER: Between radicalized Muslims and Islamic faith. Millions, billions rather of Muslims live peacefully in this country, but sadly they have been lumped in whether be by Anne Coulter or by Ms. Gellar, as radicalized or radical and they are not. And you are hating on their entire religion because you hate a small subset of their religion. That is outright wrong.


KELLY: They have had several women on here.

FOWLER: Megyn that is the same justification.

KELLY: No. Let me speak. They attack several women on here who have been critical of radical Islam, radical, not all Muslims. You tell me, does that make you an extremist who belongs on a hate list?

FOWLER: Well No. But the point of the Southern Law Center is trying to make is what they justify as saying, that just because the Black Panther Party hates all white people, it means that I hate all white people. And that is just not true. And I think that is part of the problem.


KELLY: Really, is that what everybody said? Did you go through and review all of...


FOWLER: That is what they justify.

KELLY: The source they use for their condemnations of these women?


FOWLER: When you go around and you make fun of an entire religion, or an entire group of people and you speak out against the Muslim faith because you have a problem with a small subset of Muslims that is spreading hate. They use the cloak of religion. They use the bible and they use the cross to do it and that is downright wrong, Megyn.

KELLY: Why isn't it just using what they did? Why isn't it just saying I have a problem with radical Islam?


FOWLER: Exactly. That's exactly the point.


FOWLER: Megyn, but you proved a point that I've been trying to make.

KELLY: And now what do they do? The women who speak out of that, they get put on the hate list, here's their crazy clown rendering.

FOWLER: That's exactly the point I'm trying to make. We should speak out against terrorism, we should speak out against Al Qaeda.


FOWLER: Wait a minute. The distinction, what Ms. Gellar did, was accuse distinction. You could speak out against terrorism and ISIS without condemning the entire religion. Her cartoon drawing activity was condemning the entire religion and that is downright wrong and you know it.

KELLY: Now it is my time. Judge Jeanine Pirro is on that list, because she had a guest who said something crazy which she was caught off guard by it on the air, then she later came out and apologized for it.  What is she doing on that list?

FOWLER: I'm not talking about Judge Pirro. I am talking specifically about Ms. Gellar.


KELLY: This is a careless organization that cares not at all about the safety.


FOWLER: They condemned the KKK, they've done expansive work on condemning the KKK, as well as the Black Panther Party, as well as groups that speak hate and groups that inspire folks like Dylann Roof to go into a church.


KELLY: One of their big sources is care. Do you think the Southern Poverty Law Center is concerned about the hate coming from care which supports Hamas?

FOWLER: This is the thing, Megyn. I think when you look at...


KELLY: What is your answer to that? What is your answer to my question? Richard, answer that question.


KELLY: Either answer the question or let's end. Do you think the Southern Poverty Law Center has condemned care, and what many have documented as its support for Hamas which the U.S. recognizes as a terrorist organization?

FOWLER: Listen, I'm not saying the Southern Poverty Law Center does everything right. No organization does everything right, Megyn.

KELLY: You got that right. I got to go. Ok, good to see you.

FOWLER: Good to see you too, Megyn.

KELLY: I love Richard. I do genuinely, he's great. But wow.

Ok, up next, the case involving an illegal immigrant charged in the connection with the death of a popular Oklahoma TV sports anchor, and why it is leading to so much outrage.

Plus, we have big developments in the search for those two escaped killers. Their relationship with the woman who helped them and what her husband is now saying about it.


LYLE MITCHELL, HUSBAND OF ALLEGED ACCOMPLICE: She said that she would have never have gone through with it, after she told me. And that she really loved me and she was in too deep.


KELLY: New developments tonight in the death of a beloved sports caster in Oklahoma City. As the man responsible for the death of Bob Barry Jr. faces manslaughter charges, and now some are wondering what his killer was doing in the country in the first place. Trace Gallagher, live in our West Coast Newsroom with the story, Trace?

TRACE GALLAGHER, LOS ANGELES: Megyn, Bob Barry Jr. was one of the most popular local sports anchors in the country. He worked in Oklahoma City for 32 years and he was Sports Caster of the Year six times. Police say that 58-year-old Barry was driving his motorcycle in the left lane when the driver next to him in the right lane suddenly made an illegal u-turn, smashing into Bob Barry and killing him. He was not wearing a helmet. The suspect identified as 26-year-old Gustavo Gutierrez, is a Mexican national in this country illegally. Gutierrez does not have a driver's license, and was also found with a small amount of cocaine. Because of the drugs, he could have faced second degree murder charges, instead he's now been charged with first degree man slaughter, and was arraigned today on the driver's license and drug charges. Gutierrez is now under an immigration hold which means he doesn't get bail, and he will stay in federal custody until his case makes it through the court system. As in other cases like this, immigrations and customs enforcement won't say if Gutierrez has been deported before, or if he had a known criminal background in Mexico. Bob Barry's funeral by the way is this Friday, Megyn.

KELLY: Trace, thank you.

Arthur Aidala and Mark Eiglarsh are back with me now. Arthur, should this be charged as a murder case? Could it be?

ARTHUR AIDALA, FOX NEWS LEGAL ANALYST: Technically, according to the letter of the law, it could be. Compliments to the prosecutor for charging this case for what it was. It was an accident. Everyone says it's an accident. There's no intent, there's no depravity, there's no recklessness, there's no speeding, no weaving, no intoxication. He made a u-turn. Everyone who has driven has made an illegal u-turn.

KELLY: Not while holding cocaine.


AIDALA: The prosecutor finds it irrelevant because he wasn't charged with it.

KELLY: The fact that he was in the country illegally, so he doesn't seem to care much for our laws and holding cocaine on him, is that relevant, Mark?

EIGLARSH: Yeah, it's very relevant. And what Arthur is missing is that he didn't just make a u-turn from a proper lane. He made that u-turn from a second lane and didn't look. And just made that u-turn, I call that culpable negligence, maybe even reckless because he had no regards for anyone else.


KELLY: The police allegedly found a small amount of cocaine inside of his wallet which is a felony. If somebody dies in the course of that felony Mark, can you get to murder?

EIGLARSH: Absolutely. It is a felony offense. He was committing possession of cocaine, which is punishable by up to five years in prison.  And in doing so, he caused the tragic demise of a beloved sports broadcaster.

AIDALA: He's charged, Megyn, with causing an accident without possessing a valid driver's license. That's the words in the law. I'm not making it up. He is facing five years in jail.


KELLY: Is he -- does the immigration violation catch up with him and he gets deported, if he's found guilty or do we just convict him on that and keep me here in the United States' jails?

AIDALA: He does the jail, and then he gets deported.

EIGLARSH: I'm not so sure they'll deport him.


EIGLARSH: I'm not so sure they'll deport him. Because I've had many clients convicted of this offense and I don't know if this is top priority.  He should be gone. The possession of cocaine is more of a problem for him.

AIDALA: My clients don't get convicted. So I don't know about this stuff.

KELLY: By the way, on a nicer note, congratulations to you Arthur, the new President of the Brooklyn Bar Association. Another good news about Arthur about what I'm more excited. You'll have to stay tuned for that.


KELLY: Big news tonight in the story of two killers on the run, the woman who helped them escape and what her husband is now saying. Trace has that report from the West Coast Newsroom, Trace?

GALLAGHER: Megyn, we are told it was common practice for inmates to cook inside their cells. So Joyce Mitchell reportedly put the hacksaw blades into frozen hamburger meat and asked a prison guard Gene Palmer to give it to Convicted Killer, Richard Matt. A lawyer for Gene Palmer says the only thing his client is guilty of is trusting Joyce Mitchell, and not running the meat through a metal detector. Joyce Mitchell would also apparently bring the guards baked goods in exchange for favors for Richard Matt and David Sweat. Even once asking prison officials to move Sweat next to Richard Matt's cell. Joyce Mitchell's husband, Lyle Mitchell says his wife did things for the killers because they give her attention. But he claimed she did not have sex with them. In fact, he says when she refused to kiss Richard Matt, he threatened her and that's how she got involved, listen.


MITCHELL: I said how can it happen? And she said this -- I got over my head and I was scared. She said I got something else to tell you. I said what's that? She said their plan was they wanted to kill you. She told me that Matt wanted her to pick him up. And she said well, I never leave without Lyle, never. And he said I'll give you some pills to give him to knock him out and we'll -- you can pick us up. She said I am not doing that. She said I love my husband. I am not hurting him. She said then I knew I was over my head.


GALLAGHER: In the meantime, authorities continue searching the area around a hunting cabin where the killer's DNA was found on Saturday. Boots were also found inside the cabin, suggesting one of the escapees is bare foot, in very rough terrain, Megyn.

KELLY: Let's hope they're closing in. We'll be right back. Thanks, Trace.



KELLY: Do you think that he was trying to decapitate you?

TRACY JOHNSON: Yes, ma'am.

KELLY: He was actually in the process of beheading you?



KELLY: Tomorrow night, only here, a special television event. Tracy Johnson, the woman nearly beheaded on U.S. soil, just moments after her co-worker actually was beheaded, tells her story for the first time, 9:00 p.m. Eastern. Hope you'll join us.

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