tv The Kelly File FOX News September 10, 2015 6:00pm-7:01pm PDT
day, no yammering when writing to "the factor." thanks for watching tonight. ms. megyn is next. please remember the spin stops right mere. definitely looking out for you. breaking tonight, a bare knuckle brawl breaks out at the top of the republican field as the gop candidates go after fellow candidate donald trump in a way we have not seen before saying we have had enough. well come to "the kelly file" everyone. i'm megyn kelly. in the last 24 hours we've seen a remarkable series of exchanges from donald trump, dr. ben carson carly fiorina, jeb bush and scott walker. the candidates at the top of the pack trading shots on faith, appearance humility, maturity and even now the medical credentials of dr. ben carson a brain surgeon who has saved the lives of countless children.
it started yesterday when dr. carson was repeatedly pushed by reporter to differentiate himself from trump. he answered with this. >> dr. carson you and donald trump have things in common you're both leading the poll both first-time candidates. what do you think the main char tis char ris ticks -- >> i realize where my successes have come from and i don't deny my faith in god. and i think that probably is a big difference. >> can you expand on that? you don't believe his faith is insere when he's made comments about it? >> i haven't heard it. seen it. you know one of my favorite
bible verses, proverbs 22:4, it says by humility and the fear of the lord are riches and honor and loofife. and that's a very big part of who i am humility and the fear of the lord. i don't get that impression with him. >> this morning trump responded. hammering carson over his faith and his medical qualifications. >> i've known ben carson for a long time. i never heard faith was a big thing until just recently when he started running. i don't know about ben carson's faith and all of the sudden he becomes this great religious figure. i don't think he's a great religious figure. i saw him quoting something, quoting on humility and it looked like he just memorized it about two minute before he said the quote. don't tell me about ben carson. he's starting to hit me so i hit back. i only hit back when i get hit. i'm a great counter puncher. excuse me chris.
go back and look at his past. go back and look at his views on abortion and see where he stands. you talk about abortion. go back and look at his views on abortion. now all of the sudden he gets on very low key, i mean frankly he makes bush look like the energizer bunny. he's very low key. >> strong words. >> who is he to question my faith when i am -- you know he doesn't know me. i've met him a few times. i don't know ben carson. he was a doctor perhaps an okay doctor by the way. you can check that out too. we're not talking about a -- he was an okay doctor. i don't know --? he was the first man to separate con joined twins. >> because he's a doctor and hired one nurse, he's going to end up being the president of the united states. ben carson is not going to be your next president. that i can tell you. >> joining us with reaction, fox team coverage to night.
we begin with chris and bill. let's start with the check it out, what kind of a doctor ben carson was. so we did. the problem is i can't pronounce anything that he did. but it sounds very complicated and important. twins separated with both surviving, first introoututerine procedure, half of a person's brain is removed. cranial reconstructive surgery. i mean the thing is chris, the race is now deteriorating to the point of ridiculousness. >> they weren't triplets. if you had done triplets then maybe you're great. maybe you're okay. maybe you're into something. maybe if they had had somebody better than gooding jr. play him in the movie about his life and career you upgrade him. but as it is he'll have to live with okay. >> counter punch.
okay. but what is with he's okay. i mean really are we still connected to reality? >> no. but this is politics. that's not your job. the truth is for ben -- for donald trump, he can beat the lood out of jeb bush every day of the week and it works for him. >> exactly. >> he can go out effectively because it's just like what he learned when he was in prep school and jeb bush was in prep school you get right in his face you tell him what for. and the other kids -- it's the caddy shack theory. he's coming in and telling the judge to let the caddies in the pool and everybody cheers for him. but you can't do that when you're talking to ben carson who grew up in near poverty, who struggled his whole life. you can't treat ben carson like you treat jeb bush. won't work. >> the other thing is that bill he was attacked however you want to phrase it carson
did go after trump on the issue of faith, suggesting that he questions how much of a faithful man donald trump is. so donald trump fights back and donald trump attacks ben carson among other things his prior support for abortion. which is interesting because donald trump is in favor of abortion even partial birth abortion if which he said he would not ban. >> even though chris is an okay political commentator, i have to say i agree with everything he said. look i mean donald trump doesn't have any credibility to talk about the policy of these issues. but he's out there, he's doing his insult comic bit and the republican primary voters are eating it up. his numbers are going up not going down. i think trump feels he can keep being donald trump and it's going to be just fine. you know ben carson i loved his answer on this question. he's like well when i read the bible it reminds me that i'm the most humble man i ever met. okay dr. carson i appreciate
your appreciation of our own humility but i'm not sure that's necessarily showing -- >> you're under mining his own message. i want to talk about this. trump made headlines today on his attack on the only female candidate on the republican side. saying quote, look at that face would anyone vote for that. can you imagine that the face of our next president? well fiorina was on the kelly file last night suggesting trump is upset with her rise in the polls. under fire for the remarks, donald trump claimed that his comments aboutfiorina's face were not in fact about her face. >> first it was rosie and then i was megyn, now you've got carly fiorina. they got glu in rolling stone magazine making fun of the way she looks. why are you making fun of the way women look so much. >> i'm not talking about how they look. >> you said look at that fis.
>> i'll say nice things about you so at least they'll say he says nice things about other people. >> governor scott walker tweeted out today the personal attacks are plain inappropriate and wrong. it's time for the attacks to end. governor jeb bush had this to say. >> i don't get it. i don't see how over the long haul you can insult your way to the nomination. this disparaging of women is deeply troubling. it doesn't make any sense to me. carly fiorina had made a good contribution and will continue to make a contribution in this nomination process. she should be respected. >> so this is a man who has run on i say what i mean. it's fine. i'm not politically correct and i don't need to be. here is how his own daughter introduced him when he announced his presidential run. >> my father is the opposite of political correct. he says what he means and he
means what he says. >> so why not just come out and say i made finun of her face. so what. get over it. >> you can't say that. >> why not? >> when you're running for president there's a magic time at the beginning -- i don't know whether donald trump thought he was a viable candidate for the president of the united states when they started out that day but he was going to have fun. at least he says before he's going to make sure that jeb bush and the republican establishment are thrown over a tea kettle when they get the chance. now he thinks maybe i could be nominee. maybe i could be the president. maybe this is really happening. maybe the moment is happening. as you do that you have to hedge a little bit. you can't just go out and say yeah i don't like the way she looks, i think she's a dog and i don't want her to be president. >> why not. he has said things before, as everybody knows, including a bimbo comment and he does fine in the polls including with women. why not just go for it. >> you cannot do it.
you cannot go all hog all the time. because what will eventually happen -- as i said before republicans will give lots of leeway for donald trump to be up on jeb bush. fine fine fine. but when we look at the candidates who they like. they don't like jeb bush particularly. as a matter of fact they view him the negative construct is about the same for jeb bush and donald trump. they like carly fiorina and they like ben carson. if you beat up on these people it looks like you are damaging the party and its chances to get to where they want to go. >> bill let's talk about how this is going to play across the other side of the aisle. what we saw today in the wake of the fiorina comments were headlines from the media that looked like that. donald trump insults carly fiorina's looks. washington post talks about yeah right, when he says he wasn't attacking her looks. history tells another tale.
then politico had a headline gop women rip trump, quote, he's a pig. slate which is left leaning, donald trump is obsessed with sex appeal. and on it goes. but the cnn latest poll shows that trump is up big time with women. he was down at 13% a couple of months ago he's up to 33% now. his numbers with women are going in the right direction. >> it's hysterical to me that his numbers continue to go up. >> gop women. >> there's only so many women, so many voters in this country that support the sort of juvenile perception that donald trump has of the american people. when he talks about jeb bush and ben carson having low energy what people hear is they have low testosterone. when he talks about women being ugly or bimbos he's appealing to the juvenile adolescent strain of thought that can only take you so far in a
presidential race. among the small core of people that are supporting him, he's going to enjoy that support all the way to the nomination site but that's not enough to get a majority of the nominations, certainly not in the presidential election. >> guys good to see you both. >> good to see you. >> have a good night. we got breaking news a short time ago on next week's big debate. and charles krauthammer is here moments away on what to expect from that. bad news today on the six baltimore cops who will be tried in connection with the death of freddie gray. also kim davis heading back to work after refusing to issue marriage license to same-sex couples. but will she again defy the court when she gets to the office? her lawyer is live with her tonight in a "kelly file" exclusive just ahead. would you please help me welcome to the stage, kim davis?
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announcing the candidates qualifying to take the stage. 11 candidates will make the dance. it's everyone who made the fox news debate but carly fiorina. the main candidates will face off earlier in the evening. charles krauthammer is a fooxtox news contributor. going into the debate as we see the gop candidates mix it up for significantly after labor day, what are the stakes and what do you expect to see? >> i think the story line is pretty clear. we have the anti-establishment candidates way at the top led by trump and then you've got the rest. if you look at the latest national poll within you've got trump and dr. carson just the two of them were more than 50% if you combine them. it's the anti-establishments versus the rest of the field.
and the question is who is going to distinguish themselves from the rest of the field. because as long as the so-called establishment types number about 14 or so they're going to split the vote and they're not going to figure. >> what does that mean? does that mean carson and fiorina have to hit trump and vice versa? >> no. i think it means the people who are not outeroutsiders and who are lingering in the low single digits or high single digits with jeb bush are going to have to step out and distinguish themselves. when it whittles down to two or three or four, 30% is not enough to carry the vote. but as long as it remains splintered among the accomplishment the former this and that two-term governors and senators then there's going to be trump obviously and carson leading the field. and i think the real story is
going to come from the lower tiers here to see who emerges. >> what do you make of what we've seen what we've just discussed about carly fiorina suggesting that donald trump has a woman problem? >> well i thought when i heard the remark we was watching the show last night and brit hume commented, he suggested that this raises the question about the maturity of a man who uses what brit called i think accurately boy schoolhouse stuff, schoolboy stuff. i think it raises a more general issue. say for example, i don't know. we have a national debate and a female moderator asked mr. trump about previous infusions of this kind and yards he gets agitated and complains that the questions
were unfair. i think what had just been shown by the carly remark is that the questions were not just act but right on. but the irony is i don't think it's going to hurt him at all. every time there's be a so-called gaffe, it has made no difference to his trajectory. it's almost as if the trump phenomenon lives outside the usual rules. kind of immunity to scrutiny of the kind you find, for example with joe biden. remember when he was -- >> what does that say about gop branding? if people perceive him as a sexist or what have you and they still say it's fine by me what does that say about those who support him? >> well i don't think it's going to make a difference for these remarks happening in august and september. that doesn't carry a lot of weight way down the primary season and in the general election. i think if tru nominee,
then he's going to have a lot of questions to answer. and i think it will be an issue. i think there's no question about that. but if it's just one of the candidates acted in a certain way, i don't think it ruins the brand unless that nominee, i think, has -- that the candidate has the nomination and then has to be the face of the party. >> the stakes have to be bigger. here's the question on the other side. we're hearing more and more that there's panic now. it's time if panic for hillary clinton, that the democrats are seriously looking at a plan b with her now behind by ten points bernie sanders in new hampshire and almost ten points and tied with him basically in iowa. is it time to hit the panic button for team clinton? is it realistic to think she's really not likely to be the nominee? >> well there is a reason to panic because -- and this speak to the branding of the parties. the democratic party is so
deluded of talent has been so demolished i think by six years of obama, who are the alternatives. the panic is that there's nobody else around. when you're fishing for al gore the proposed subs stutes are all of a democracy, all white and none of them particularly attractive. you compare that with the gop, which is a very big bench, i would say sometimes too big of a bench, and that's the problem, they have so sort out who is going to emerge. but who is the alternative? and without an alternative, unless he's indicted hillary will be the nominee. >> al gore. he went there. that would make the race interesting. >> i didn't go there. but i see his name out there. when he's one of the possible candidates you know you've got a problem.
>> charles, always great to see you. >> my pleasure. well a judge has decided that the six cops charged in the death of freddie gray will face trial in the city of baltimore and cannot change the trial's venue. but can a jury give these guys a fair trial when it will know that an acquittal could mean riots? mark and arthur have a theory on that. plus county clerk kim davis getting ready to go back to work. her attorney is with us live on whether she will stand by her faith, even if it means going back to jail. >> people have asked two questions, one with kim davis resign and two, will kim davis issues licenses for same-sex marriage. all of our legendary racing heritage. all of our pioneering four wheel drive experience. come together in one amazing new vehicle.
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county clerk in kentucky locked up last week after refusing to issue marriage license to same-sex couples. she was released on tuesday to a cheering crowd of supporters and now ms. davis says he's returning to work on monday and suggesting that the licenses that have been issued in her absence may be null and void. an attorney representing kim davis is here. matt thank you for being here. what do we expect from kim on monday? >> well what we expect from kim on monday she's going to go back to work. she loves her job. he loves people. she loves god and she wants to balance all three of those. she will return to work on monday. she'll do her work. i can tell you the two big questions are whether she's going to resign and whether she's going to issue licenses on same-sex marriages. on the first within i know for a fact that she's not going to resign. aenl the only way she could be removed from office is by impeachment. i think what they'll do is issue
legislation that accommodates her and other people's religious freedom. so the real question is what she's going to do. i don't know the answer to that. only kim knows the answer to that. i do know in talking to kim and being with her over the last several weekance months now, she's a strong woman of faith, strong conscience. she will not violate her conscience. what that means on monday only kim davis knows. >> if she has to she's prepared to go back to jail? >> we've had these conversations with kim in terms of the legal options. she makes her own decisions. we don't tell her to do this or not to do that. we give her the legal options. at the end of the day this was kim's decision. it was kim's decision originally not to issue the licenses. kim understood the consequence and spent six days in jail. he didn't know she was going to go to jail. she knew he was going to the
contempt hearing. none of us knew that was going to be a possibility. but once she got in jail she understood the consequences and now in fact that was a possibility and she's willing to pay the consequences for not violating her conscience. she knows that going forward and she's going to be true to her conscience. >> the attacks on her have been remarkable. here's a sampling of what we've heard this past week. >> this is a woman who has been married more times than everyone at this table combined. >> this [ bleep ] got aman by theu the way. have you seen here? >> sign he up i'll go kill her and whatever toothless redneck. by the way, who is the creepy giant farmer behind them? why -- like what does that do? >> she's a monster, how did she get a husband, i'll go kill her,
who's her creepy husband. how is she doing with this? >> well you know it's amazing that people call her a hater. you don't know kim davis if you call her a hater. she loves everybody. and she has no animosity or ill will. she's really not watching the news so she's not paying attention to that. we somewhat are glad that she's not because it's very hurtful, not just to her but to her husband as well. those kinds of comments going after her human her personal appearance and her husband. yes she has been married multiple times. there's in question about that. she said she's played in a devil's playground. she's made many mistakes. but she gave her life to jesus and that turned her around. that's what makes kim davis tick. she loves god, she loves people and she wants to do no ill will to anyone. she just wants one thing and one thing only to have her faith and conscience accommodated. and there's simple ways to do that. the governor could do it by
executive order. the legislature could fix it. the judge could order it. any one of those three or a combination of each could address the issue for kim davis and others rather than put her in jail. let's be big enough in america, tolerant enough to accommodate her faith. >> thank you for being here. well the obama administration is facing tough questions tonight after dozens of spies, 50-plus spies came forward to say that someone in the administration is changing the intelligence when it comes to the fight against isis to make it sound like we are doing better than we really are. james roz season just ahead with an indepartment investigation on this. plus we have an inside source who will speak to us about it after him. also breaking news tonight on the rash of sniper style shootings along a popular highway. just ahead, the new worry that police are now facing. up next can the officers
charged in the death of freddie gray get a fair trial when the jury may consist of some the very same folks who were pelting police with bricks bottles and concrete over freddie gray. up next sheriff david clark and others on today's stunning ruling. >> city's decision to settle the civil case should not be interpreted as passing any judgment on guilty or innocence of the officers. at ally bank no branches equals great rates. it's a fact. kind of like shopping hungry equals overshopping. ♪ we all feel the calling to build
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death. joining me now, sheriff david clark. what do you think the reaction is from the law enforcement community to this ruling? >> no surprise here. this procedural due process as you know. look cops on are edge. they're watching this closely, megyn, because a powerful institution of government, the prosecutor's office had been weaponized to go after political adversary for political activism. >> do you believe these cops can get a fair trial in this city in. >> no. and the judge and everybody else would have to suspend their sense of disbelief to think that they can. it's going to be very hard to voir dire. it's going to be hard for the defense to find people who can detach emotionally not only from what's gone on since the riots but what may happen yards. this is all set up for an appeal. >> we saw in mergson, missouri witnesses who saw what michael
brown did to officer darren wilson he was agrezing against him, he was not an innocent victim who was shot by a cop out for vengeance or blood. and they were afraid to come forward. this was documented because they were afraid of how the community would react against them for taking the side of the dead man -- taking the side of the officer instead of the dead man. do you think that plays in here for these jurors? >> sure. you're probably going to have people that don't want to be on this jury that probably would be good because they could emotionally detach from it and find guilty or innocence based on the facts and based on testimony instead of emotion. you're also going to find people who are going to want to get on this for self serving agenda. it's going to be problematic. but that's why the motion was made because it sets up a good appeal i think. >> what do you think goes through these cops' heads as they're sitting there realizing many of the same people who participated in the riots to
some extent may wind up trying them in connection with what in some cases, are manslaughter charges? >> that's what i find highly problematic here. that's why i said they can't get a fair trial in baltimore country. these officers are not political prisoners when that was first filed, the activist state's attorney made it clear, saying we need to make a movement out of this. that's not what the prosecutor's office is used for. so we've got a long way to go. and i still think, though that the process will get it right. i really do. >> sheriff, always good to see you rnls thank you, megyn. >> joining me now, criminal defense attorney and former prosecutor and a fox news legal analyst. good to see you both. you said before that you thought this judge should move this case out of baltimore. >> absolutely. yet it's in his discretion and they're thinking we don't know what the jurors are saying until we question them.
listen to me. this is what they're thinking. my town burned down and turn into anarchy. i had to pay out $6.4 million out of my pocket because of the negligence of these officers. that's not really the that's what they're thinking though. my town will burn down if i say two words instead of one word. guilty versus not guilty. you move it to another town those people aren't thinking the same thing. >> what about that arthur? >> i totally disagree. and i'm going to talk just from a purely trial attorney's point of view. >> blah blah blah. >> mark. >> come on. go ahead. >> during the day mark is actually a trial attorney. he just tried a homicide case and so am i. >> yes. >> from a real legal point of view if you asked me what the stunning decision was here the stunning decision was a negative one with the $6.4 million. but the other one was the six individual trials. if you asked mark as a defense attorney on this case if he had a choice between the change of
venue or being the third defendant to go on trial after two others go on trial, i know him. you want to be the third. i don't think in today eats day and age of media, social media and the internet that moving it to a different venue is going to eradicate the whole feeling that if i rule one way or another way it's going to be f to have an effect on a community. >> all right, arthur. he just completely dodged the issue by pointing to a good favorable ruling concerning something that has nothing to do with vein you. he knows that jurors lie during jury selection. they're called stealth jurors and if you're going to have stealth jurors it's going to be in a case like this where people have an agenda. >> there was a report not long ago that that was a plan in motion. that there were folks plotting to go out and register to vote so that they could get on this jury. i realize the odds are slim of
that working out. >> you took the words out of my mouth. where does the jury pool come from ladies and gentlemen. the voting pool. how many of those people were flipping over cop cars and burning down still hall who are registered voters versus the law abiding citizens whose car, burned down whose businesses were burned down who loved the police are going to be members of that jury pool. >> what about that mark? >> megyn, the people who weren't burning cars are the ones who are worried that their lives are in danger. the last high profile case where the jurors didn't rule the way the public wanted, people wanted to know who those people were. there were death threats out for them. they're going to be afraid to find the cops not guilty. >> what would. downside have been to the judge moving it out of baltimore just to make sure. >> appeal issues. >> it's six cops. let's just be careful. let's move it out of baltimore, no harm no foul. >> my interpretation of what the judge said is she hasn't 100%
ruled that out. let's get jury pool in here start talking to them and if it's so egregious that neither side can get a fair jury then we'll consider it. >> what are the odds f that a juror saying i can't be fair. i like to say it so they don't select me. hasn't worked so far. >> mark you're disrespecting the citizens of baltimore saying we don't trust job wu we don't think you can be fair. of a whole city we can't find 12 of you. >> i'm not disrespecting baltimore. all jurors potentially can lie. in a town like this the chance is much greater under these circumstances. >> i served jury duty three years ago and the defense attorney looked at me and he said ms. kelly, if i put you on this jury will you put me on tv? >> didn't see that coming rnl obviously i gave the wrong answer because i.d. was selected. good to see you both.
and we found his client guilty and i did not put him on tv. did not work out that well. up next new outrage after more than 50 more than 50 intelligence analysts blow the whistle on their bosses in the obama administration saying senior military officials have been doctoring their reports on terror groups to make it sound like we're doing better against isis than we are. james rosen has been working the investigation and lieutenant colonel toni schafer joins us with inside information right after this break. it's from daddy. sfx: dad's voice i love you baby girl. duracell quantum lasts longer in 99% of devices so you can always be there.
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developing tonight, the "kelly file" confirming a new report that more than 50 intelligence analysts working at the military central command are now alleging that their intel reports on terror groups including isis have been inappropriately manipulated by senior official to fit a narrative that we're doing better in the war on terror than we really are. james rosen and colonel tony schafer are here. we're going to start with james tonight. >> good evening. top adviser to president obama are confirming tonight that the pentagon is investigating allegations that damaging internal intelligence assessments of our sluggish fight against isis are being an tiezed on the way up the chain to the commander in chief.
the daily beast broke the story that more than 50 intelligence analysts at centcom have complained formally that their senior officers are altering their reports. today, the head of the defense intelligence agency confirmed that the pentagon's inspector general is probing the matter. >> we'll figure out if we did something wrong and we'll be better as a result of the open investigation. >> however, general stewart has himself sought at times to put a better face on the administration's isis campaign. fox news broke the story in june that the dia director ordered the deletion of the word quagmire about the testimony that was being drafted for him to live to congress. a white house spokesman told me today the commander in chief wants quote good information
from the pentagon's intelligence office. >> particularly when he's dealing with a situation as complicated as our efforts to degrade and ultimately destroy isil. i haven't spoken to him about it >> all of this recall allegations from the last decade about president bush and vice president cheney allegedly manipulating evidence. but the reform to investigate the allegations in its final report in 2005 that those claims were unfounded. >> for more we turn to retired reserve lieutenant colonel tony schafer. tomorrow we mark 14 years since 9/11 and here we go with intelligence about the dangers we face being downplayed -- the intel coming from the analysts being downplayed for what? political purposes? >> absolutely. this started in the clinton
administration. i was part of a team and we failed. we talked about this four years ago. what's important to remember is this is not the first time this has happened. they're trying to put this happy face on -- it's notable, he said the president wants good information. he didn't say he wants exact information. that's what the intelligence commission should be producing. let me be clear on this. there's three areas that have being manipulated aidccording to my sources. when we go and bomb isis the results of the bombings are being overly emphasized as being successful and they're t. secondly the actual conclusions of the reports -- some of these things are voluminous. we're talking about inches deep. the actual content may not be changed but the conclusions are. when you read the conclusion you think everything is good. when you go into the report things are not as good. and third most importantly -- let me be clear. these are good analysts.
they're trying to do their job, be clear concise and truthful in their assessments. when they nominate information to they pick a target to be nominated, to go kill it or degrade it it is being deleted from the targeting package. >> so some have come out and blown the whistle. and now they feel they cannot even get a candid assessment. he know what's going to happen. so what happens? does this get reversed? who is it that is manipulating the analysts conclusions? >> according to my sources, it is currently going on with two star generals. then also the civilian senior guy, greg likeman keeps coming up. you have people literally working all the time. it gets to the senior level and gets manipulated. that's where it is right now.
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we are getting reports that police are getting new reports of sniper shootings along the trace of the interstate. >> 11 vehicles attacked in 12 days but the number could jump because they're investigating other possible shootings. police call it a pattern of domestic terrorism. so far the only pattern the shooter or shooters have followed is that all but one of the incidents have been on or near interstate 10 in central
and west phoenix. investigators believe most of the attacks are gunshots or pellet shots but some are unknown projectiles. the times are also random from early morning to late evening and all hours in between. police do not know if the shots are coming from someone driving on the freeway or someone hiding along the freeway. even though this is part of i-10 it is in the middle of the desert. there are plenty of trees, buildings and structures for someone to hide behind. as we learned in the d.c. sniper attacks, it is difficult to pinpoint a direction the shots are coming from. although someone who wants to remain anonymous thinks they are firing from close range. >> i was driving. i heard something from really close to me. i didn't get hit but i definitely heard it. >> i don't think it came from very far. i think from another vehicle perhaps. i don't know. i know it was a gunshot. >> even though a lot of drivers claim they're avoiding end state
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