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Sandusky's NBC interview could be grounds for appeal

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    Legal panel weighs in

  • Duration 6:35
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Kelly's -- back in session on the docket today the Penn State sex abuse verdict well it was a verdict against Jerry sandusky.

And what could be grounds for appeal even before Jerry sandusky was convicted late Friday night his lawyers were trying to get a mistrial and now they're gonna try to get an appeal.

All because of an interview.

The former football coach gave NBC's Bob Costas just after the scandal broke here's what happened.

They played this interview in court but they played.

At tape that was edited.

In a very questionable way now here's the part of the interview that should've been played and NBC didn't play it on its program Rock Center.

With Bob Kostis is of the non controversial version that should have been played listen.

Are you sexually attracted to young -- to underage -- So -- sexually attractive yeah stage polish.

Sexually attracted -- either uninsured young people.

I found love to be around them.

It's.

I -- but no I'm not sexually attracted to young -- But that is not the version the jury saw the prosecution showed them instead an edited version.

That repeats the key question and answer as though Kostis and send ASCII were repeating it -- And this is apparently they took that they took a tape from The Today Show is a poster from Rock Center.

And was provided them we're told by NBC news and here is what the jury heard with some here.

Are you sexually attracted to young boys -- -- And I sexually attracted under age -- are you sexually attracted to young boys underage boys.

So much actually attracted for underage foolish.

Sexually attracted you know on the either -- -- young people.

I I love to be around them.

If I -- but no I'm not sexually attracted to him bullish.

Now the defense is making an issue that's joining me now to discuss at least -- Fox News legal analyst and -- -- collections of former prosecutor now defense attorney.

Police did the defense lawyer know that that tape was miss edited.

At the time did he object to the prosecution knowingly played -- wrong tape that prosecution knowingly played the wrong tape and -- that's the argument they're going to make an appeal.

It's a decent appellate argument.

But the question -- that surrounds it is Megan.

Would it have made a difference in other words if you hear that the first time and you hear the second time that the questioning -- the second time.

Would that really have made a difference and then the totality probably not but it's a decent.

To quit why -- -- why do you say the prosecution knew because my information was they got the tape from NBC.

They -- it and then after it aired before the jury but the prosecution was told by the network.

Wait a minute.

That we should give you a different version is that am -- wrong.

No no you're right on that but the but the point is where the by the defense -- not a defense did not know so going into that trial.

Not having the right transcript not having the right -- not being able to object -- use that -- did they have checked.

They didn't objects -- didn't know.

Is it fair is it their ballpark about -- -- -- I say I want the entire.

-- unedited tape I'm gonna listen to it with my assistant my associate rank and if they play that version core I'd stand up and I'd say.

Your honor.

That's the -- taking.

Yes it -- they should've done that if if if they didn't obviously shame on them but here's the big picture so I -- could feel real comfortable because least use the word decent issue on appeal and I don't want anyone to be misled the this will go nowhere the appellate court in a worst case scenario will call this error but use the harmless exactly harmless arrow which brains.

Okay maybe they should -- happen but there's all overwhelming evidence of his guilt.

All of the testimony it yet on laughs okay you're not that I -- sitting -- right and we'll discuss it discuss a -- -- -- the break.

So NBC news turned over all versions it had of the interview which is how prosecutors -- wound up with one that was not right.

The wrong what was played for the jury.

Ultimately the judge tried to cure it by instructing the jury only to look at that at the transcript the -- transcript of the full interview.

That was ultimately provided to them but the defense -- at least -- argued that the damages are done the jury heard -- -- -- -- exactly on the critical issue of the case which is is this -- attracted -- little boy and what that what that defense is gonna argue on appeal is look at stonewalling that he was it looks like he was stonewalling in this interview -- -- really wasn't answered the question.

After -- only asked one time but the way now he was balling but just not that way that tapes suggest exactly exactly makes a much much million.

I mean -- marking the illicit tape any say -- are you attracting little -- I enjoy young people and he went on from there are adding that that what is usually just look at him in trouble not the repetition of right.

I don't know than it ever disagree with you as much as I do right now you are making so much to do about this time we haven't I've witnesses and 8910.

I think you've got you got lied witness that we're not when he's -- that they cannot request but it didn't let me let the issue is you don't need at least go ahead.

It's a question of whether -- -- wanna -- I tell you whether it has and that parent or not it has no merit because it would be harmless error in the work I hate America.

Idea -- any -- -- -- I don't know going to be I -- -- is that that that first interview that Costas did was conducted in the presence of -- doesn't -- -- actually your have to talk it isn't so stumbling but now -- you interviewing me not knowing what his client did not attempting I don't played a lot of another issue on appeal but ineffective assistance of calculated.

He's incompetent this lawyer wasn't tempted to let him do that not only -- a lawyer probably make some mistakes but then a lawyer came out after the convict -- and said this listen.

The judge in this case was marvelous judge clearly and was the ultimate jurors he -- -- He was firm.

He was reasonable.

With everything we asked for DOD disagreement obviously we had was our requests -- continuance.

Any -- the jury in said the evidence against his client was overwhelming.

These yeah that's a that's an appellate issue mark I don't.

I mean I hope this does not go to a Smart -- when I say it doesn't but it's not but it you counsel to respond.

Now let me make this clear he was ineffective assistance of counsel outside the courthouse and I -- -- -- you can't -- rational look at other night and that's.

The best argument is that the case started too early that's his best arguments don't think it's not gonna work I cannot but you're right thank you both we'll be right back.

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