During the December 11 broadcast of their 630 KHOW-AM show, co-hosts Dan Caplis and Craig Silverman joined guest Bill O'Reilly in distorting facts regarding Boulder District Attorney Mary Lacy's handling of an investigation into the March 3 death of infant Jason Jay “J.J.” Midyette. Inflating his impact in the case, O'Reilly made the dubious claim that “if it wasn't for guys like you, and guys like me, baby Midyette would be in the ground dead and murdered and nothin' would happen” -- an assessment with which Caplis and Silverman agreed. However, according to the Boulder Daily Camera -- which O'Reilly called “a left-wing lunatic asylum” -- a grand jury was convened in early October to investigate the baby's death, a full month before O'Reilly began covering the case. O'Reilly also falsely stated that “last March [Boulder authorities] knew” that the infant had been “murder[ed],” although the Boulder County coroner reportedly did not make that determination until July.

As the Daily Camera reported on July 24 (“Baby's death a homicide: Ruling on manner of death took coroner several months”), the coroner's office ruled “the day after his death” that the boy “died of a closed-head injury” but "[d]etermining the manner of the boy's death ... took nearly five months for the office, which contracted help from experts in four states." His parents reportedly had claimed through their attorneys that “the infant was suffering from a medical condition and that the parents did nothing criminal.” The Daily Camera reported that doctors “determined it was unlikely the boy suffered from osteogenesis imperfecta, a rare genetic disease that makes bones easily breakable.”

A July 29 Daily Camera editorial about the baby's case asked, "[H]ave the Midyettes been given special treatment by investigators because of their community standing and connections?" It answered, “No, but they are privileged and knowledgeable. They simply knew they had a constitutional right not to speak to police, and enough money to retain a lawyer. And remember, they are presumed innocent; let's not repeat the mistakes made by so many in the Ramsey case.”

On December 7, the Camera reported that "[t]he Boulder County District Attorney's Office confirmed ... that it has convened a grand jury to investigate the March death of 10-week-old Jason Midyette" and that "[t]he district attorney's office began assembling the grand jury panel Oct. 5, but didn't begin presenting its case until Oct. 26." The same article reported that "[t]he secret panel has been meeting one night a week" and that it “most likely will take many months to review the case.” The article also noted, “Grand juries are typically impaneled for a year.”

While the grand jury met in secret, beginning in October, O'Reilly apparently began airing his coverage of the story during a “Factor Outrage of the Week” segment on the November 9 broadcast of The O'Reilly Factor (transcript accessed through the Nexis database):

O'REILLY: “Factor Outrage of the Week” segment tonight: more evidence that babies are not being protected in the USA, as we pointed out in the “Talking Points” memo.

In Boulder County, Colorado, a 10-week-old baby named Jason Midyette was brutally killed by somebody. His injuries were horrific, a skull fracture, two broken legs, on and on.

It happened last February, but, so far, no charges have been brought by Boulder DA Mary Lacy, the woman who embarrassed Colorado in the John Mark Karr-JonBenet Ramsey case.

Following O'Reilly's coverage of the case, the Daily Camera reported on November 16 that “Fox News personalities Bill O'Reilly and Greta Van Susteren ... have now picked up on the Midyette case” and that O'Reilly's show for November 15 “included commentary regarding the case from Denver radio personality Dan Caplis, whose show over the past two days has been critical of Lacy's treatment of the Midyette case.” The same article also reported that a camera crew from Fox News “was on Lacy's doorstep last week seeking answers about the case.”

During the December 11 broadcast, Caplis brought up for discussion a December 8 editorial in the Daily Camera that, in Caplis' words, took “a pop” at O'Reilly for his criticism of Lacy. He introduced the topic by crediting O'Reilly for advancing the case:

CAPLIS: In terms of Midyette, first of all, this is where Bill's show, I think, is, is at its finest, where, you know, they do good investigative journalism and they influence the course of events in America. There's no doubt in my mind that we wouldn't be seeing some of the developments we're seeing in Midyette now had you not, you know, shone the spotlight on it. But I just wanted to read a pop the Daily Camera took at you today in -- in their editorial section as they talk about Lacy -- primarily defending her, but for the first time some criticism that she should have gone public earlier with the announcement that a grand jury had started to look at this in late October. But they said, “Lacy has remained tight-lipped even under the scrutiny of the notoriously unfair and unbalanced Fox News personality Bill O'Reilly.”

Caplis also noted the editorial's criticism of Lacy that she had not made public earlier that a grand jury had been impaneled to investigate the case in October:

CAPLIS: Yeah, and -- and then this other point: “Had she acknowledged” -- and this is their, their criticism of Mary Lacy -- “Had she acknowledged the grand jury in October, the big-media jackals would have lost a key round of ammunition and the public would have gained a critical measure of confidence.” I don't believe that for a second. I mean, whether you are using that tool or not, you're still talking about two hundred and eighty-seven days as of today since that battered child was brought into the -- the -- into the emergency room.

Responding to Caplis, O'Reilly called the Daily Camera “a left-wing lunatic asylum” and claimed that “the biggest indictment of the Daily Camera is that they sit on their butts and do nothing when right up the street a little baby is brutally murdered.” O'Reilly further claimed, “And if it wasn't for guys like you, and guys like me, baby Midyette would be in the ground dead and murdered and nothin' would happen.”

However -- even after Caplis read from the December 8 Daily Camera editorial noting that the grand jury had been impaneled in October -- O'Reilly, Caplis, and Silverman all failed to acknowledge that their reporting on the case had not begun until the following month -- a direct contradiction of their suggestion that their reporting triggered “some of the developments we're seeing in Midyette.”

Later in the broadcast, O'Reilly again attacked Lacy, stating, “Mary Lacy couldn't care less. Mary Lacy's interested in Mary Lacy. Doesn't care if a baby is killed. It's not like this woman has a lot of other stuff to do, you know?”

From the December 11 broadcast of 630 KHOW-AM's The Caplis & Silverman Show:

O'REILLY: There are things in America that are disturbing. I mean, look at the Boulder situation up there with this Midyette baby. I mean, I can't imagine how this is goin' on up there, but it is. You know, baby beaten to death and, you know, last March they knew that it was a murder and now it's December and there's no indictment? And, I mean, it's just craziness. And it seems that Denver seems to be a lightning rod -- the Denver area -- for a lot of this stuff. Why is that?

[...]

CAPLIS: In terms of Midyette, first of all, this is where Bill's show, I think, is, is at its finest, where, you know, they do good investigative journalism and they influence the course of events in America. There's no doubt in my mind that we wouldn't be seeing some of the developments we're seeing in Midyette now had you not, you know, shone the spotlight on it. But I just wanted to read a pop the Daily Camera took at you today in -- in their editorial section as they talk about Lacy -- primarily defending her, but for the first time some criticism that she should have gone public earlier with the announcement that a grand jury had started to look at this in late October. But they said, “Lacy has remained tight-lipped under the scrutiny of the notoriously unfair and unbalanced Fox News personality Bill O'Reilly.” Obviously, not backing that up with anything other than the --

O'REILLY: Well, it's the Daily Camera. What do you expect them to say?

CAPLIS: Yeah, and -- and then this other point: “Had she acknowledged” -- and this is their, their criticism of Mary Lacy -- “Had she acknowledged the grand jury in October, the big-media jackals would have lost a key round of ammunition and the public would have gained a critical measure of confidence.” I don't believe that for a second. I mean, whether you are using that tool or not, you're still talking about two hundred and eighty-seven days as of today since that battered child was brought into the -- the -- into the emergency room.

O'REILLY: Of course. Listen, Dan. You and Craig are crusaders. You guys are key warriors. You may not agree with me on everything, and I don't expect you to. But your basic instincts are correct. You look to defend the downtrodden. And you look for the people in power to defend them as well. And that's what we do. The Daily Camera is a left-wing lunatic asylum. Everybody knows it. They shouldn't even be publishing. They're not doing anybody any good. This story is in their bailiwick. They should have broken it. They should have covered it. Not the notoriously unfair and unbalanced Bill O'Reilly over in New York City. OK? I mean, the biggest indictment of the Daily Camera is that they sit on their butts and do nothing when right up the street a little baby is brutally murdered. OK? So that paper -- you, you know where you can put it, you know? I mean, it is just a piece of garbage. And I speak this -- I speak this passionately, because the Daily Camera is no different than most of the media. A bunch of coffee-klatch liberals sittin' around theorizing. And then when something is right in front of them that they could do something about, they pass. And that just drives me nuts. And if it wasn't for guys like you, and guys like me, baby Midyette would be in the ground dead and murdered and nothin' would happen.

SILVERMAN: Boy, that's really true, Bill, because who was going to speak up for Baby J.J.?

O'REILLY: Nobody. Mary Lacy couldn't care less. Mary Lacy's interested in Mary Lacy. Doesn't care if a baby is killed. It's not like this woman has a lot of other stuff to do, you know?

CAPLIS: Well, Bill, well said. I think she's dangerous, and I'm glad you're on it and look forward to your radio show being back on KHOW beginning at 6 o'clock tonight -- The Radio Factor and, of course, The O'Reilly Factor airs locally at six as well.