This is a rush transcript from "The O'Reilly Factor," July 31, 2007. This copy may not be in its final form and may be updated.
BILL O'REILLY, HOST: "Personal story" segment tonight, legendary actor Robert Duvall has injected himself into a very troubling criminal case.
Twenty-three-year-old Brendon Rose has served three years of an eight-year term in a California prison for injuring a man in a bar fight. Mr. Rose came to the aid of his brother, who was being beaten by a group of men in the saloon. The judge in this case, Diane Northway, threw the book at Rose because he kicked a man in the head, which may have caused a coma.
Mr. Duvall and the man's mother are appealing to Governor Schwarzenegger in the case, citing Mr. Rose's clean record and extenuating circumstances. I talked with him a few days ago.
Mrs. Rose, your son Brendon has been in jail for three years now. State prison. How's he doing?
DIANE ROSE, MOTHER OF INMATE: He's doing pretty well, considering the circumstances. It's, you know, it's overcrowded. And he's in a gym right now. He's housed with approximately 120 other men. But like I say, he's doing well. He has a lot of support and his family's here for him. So you know, all in all, he's doing all right. Thank you.
O'REILLY: OK, so he hasn't been beat up or terrorized in the prison or nothing that we have to do right away.
ROSE: No sir.
O'REILLY: He's just doing his time. And it's hard time.
O'REILLY: He's got another three years unless Governor Schwarzenegger intervenes.
Now, I think by looking at the case, Mrs. Rose, the reason he got the harsh sentence — and he had no criminal record before — was because he kicked the kid when he was down.
O'REILLY: And the judge felt that that was, you know, there was no excuse for kicking the kid when he was down. So is that what you believe happened here? He got the eight years, which is very, very tough on a first offense, because of the kick?
ROSE: Correct. It was the five-year enhancement for the kick. Correct.
O'REILLY: Now was that a fair thing?
ROSE: No, sir. I don't believe that it was. And the thing is that this case was always built on punch versus the kick. Which one of the two caused the grave head injuries.
The original attorney never medically investigated into that area. As a matter of fact, amazingly enough, we just recently discovered that he received an opinion from a doctor friend of his who happens to be a specialist in gynecology.
O'REILLY: All right. Mr. Duvall, why did you get involved with this?
ROBERT DUVALL, ACTOR: Well, because I met them a few years ago through friends of ours in Virginia. And when I heard the case it was very shocking to me.
You know, I mean, to me it's very American to defend your brother in a fight. The other brother was down. Two people were pummeling him. And Brendan came in and defended the kid.
And how do we know they didn't have knives or whatever? You know, you kick, you punch, you do anything to save your brother. It's overkill from what this judge handed down as a sentence.
O'REILLY: Now the only way that Brendan's going to get out of there is if Governor Schwarzenegger intervenes. Because I don't believe the California state Supreme Court is going to overturn this. I don't think they're even going to hear it.
So you know Arnold Schwarzenegger. You guys were in a movie together. And obviously — you know.
DUVALL: Well, Jimmy Caan — James Caan and I made an appeal to Schwarzenegger about six months ago, and we got back not a very positive reply. They couldn't do much. They, you know, got a lot on the plate and everything.
But he can still be approached I would think. Because to me this is, as we said before, legally it's overkill. And I think in some...
O'REILLY: How well do you know the man? I mean, if you could sit down with him eye to eye, do you think you could reason with him?
DUVALL: Yes, I guess so. You know, I don't smoke cigars, but I could get together with the guy any time, you know?
O'REILLY: Have you tried to get a meeting with the governor?
DUVALL: Yes, we tried contacting, James Caan and I, because Jimmy knows him better than I do.
O'REILLY: if I can set the meeting up, you'll go?
O'REILLY: All right. We'll try to do that.
DUVALL: You're one of the few guys in America you can go to with a case like this, and we appreciate it.
O'REILLY: We do want justice and mercy to be intertwined.
You want to take the last word, Mrs. Rose?
ROSE: The case was submitted to the state Supreme Court, and they have shown great interest in it. As a matter of fact, they are requiring the prosecutor to respond. So this is a good thing, because being able to get this far, to the state Supreme Court, was an important issue.
O'REILLY: OK, and I wish you the best.
ROSE: Thank you.
O'REILLY: But it would be very unusual for a California state Supreme Court to overturn a judge. It would be very, very rare. But it could happen. It's there. And when that is adjudicated then we can go to the governor.
But I do want to get Schwarzenegger and Duvall and Caan together. I think that's fair. I think he should give you that courtesy, Mr. Duvall. And we'll try to make it happen.
And we appreciate you guys coming on the program tonight.
DUVALL: Thank you.
ROSE: Thank you.
O'REILLY: So we will follow up and see if we can get Caan and Duvall together with Governor Schwarzenegger, and we will let you know what happens.
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