There’s a lot of noise being made about the revelation that NBC edited the Bob Costas interview, and how this may be grounds for a successful appeal. This has prompted a widespread outcry about NBC, the justice system, and renewed outrage about the whole Sandusky prosecution. Having reviewed the edit (TMZ actually has a clip of the actual and edit versions side by side–it’s worth watching just because Harvey Levin does such a great job of breathlessly overblown shock and outrage over nothing) I feel pretty comfortable yawning and going back to whatever I was doing when I first heard this. It is highly unlikely this will result in a successful appeal.
A common misunderstanding of the appeal process is that it counts as some sort of second trial. This is not the case. A legal appeal is a review of the original trial, specifically with regard to errors or mistakes. You cannot introduce new evidence at an appeal; all you can do about trial evidence on appeal is submit to the appellate court that either a) evidence was admitted that was inadmissible or b) evidence was denied that should have been admissible. While the edited version of the tape played for the jury probably does fall under a), that doesn’t automatically mean Sandusky’s appeal is successful. The court has to examine the affect of the edit and decide whether or not it constitutes grounds for overturning the original conviction. Think of it as “instant replay” for the court system–an apt analogy, because, just like instant replay, the default judgment goes to the field. In other words, unless there is compelling reason to believe that the unedited version of the interview would have altered the outcome of the original trial, it is irrelevant and the referree’s call (the jury verdict) stands. The presumption of innocence only lasts until you are convicted of a crime; on appeal, the burden of proof falls on the appellant.
Listen to the TMZ clip and see if you think it qualifies as a compelling argument. Personally, I had to replay it a couple of times just to notice the difference. Harvey Levin blusters about how the edited version makes it sound like Sandusky was stonewalling; actually, the unedited version still sounds like he was stonewalling. To me, the difference in versions is real but insignificant. In fact, watching the video it appears to be a glitch, not a deliberate alteration on the part of NBC. Levin claims that the audio only was presented to the jury, but I’m still not sure that’s enough to make the case that this clip altered the outcome of the trial. I suspect the numerous boys on the stand claiming they’d been abused were far more significant in his conviction, and that the audio clip was nothing more than proverbial icing on the cake.
That this NBC edit is getting a lot of attention doesn’t mean that it’s actually significant; with the trial over, media outlets are losing a story with a great deal of viewer appeal, so it’s hardly surprising they want to milk it as much as they can, even if that means pretending like it’s not really over. But it is. He was convicted, he’s awaiting sentencing, and I would be totally shit-shocked if the appellate court hears this clip and finds it relevant to the outcome of the trial.
So save your outrage over the “successful Sandusky appeal” for the moment that the court actually overturns the conviction; put that energy into something productive instead. I just don’t see the court of appeals overturning this conviction just because Bob Costas sounded like Jimmy Two Times.
Seriously, if it was that easy to win on appeal, this country wouldn’t sport 25% of the world’s prison population. Jerry Sandusky isn’t going anywhere.