Commentary

Odd legal move by Jerry Sandusky

By waiving the preliminary hearing, Sandusky's lawyers sacrificed a huge advantage

Originally Published: December 14, 2011
By Lester Munson | ESPN.com

In a surprising maneuver early Tuesday morning, Jerry Sandusky and his lead attorney, Joe Amendola, waived a preliminary court hearing on 52 charges of child molestation. The hearing would have included testimony from many of Sandusky's accusers. The decision to waive the hearing raises several questions about Sandusky's strategy, legal procedures in Pennsylvania and the next steps in the prosecution. Here are some of the questions and their answers:

What is the significance of Sandusky's waiver of the preliminary hearing?

It is, for Sandusky, a major capitulation. Amendola apparently won't concede the point, but the hearing offered Sandusky and his legal team an important opportunity to see and evaluate the Sandusky accusers in a face-to-face setting. Preliminary hearings in Pennsylvania, according to several attorneys who specialize in criminal defense in the state, are an exceptional device for trial preparation. The best possible weapon for cross-examination of Sandusky's accusers is a statement in the trial that conflicts with any statement an accuser makes in the preliminary hearing. An inconsistent statement, even on a trivial issue, allows the defense attorney to say that if the accuser lied here, he is lying about everything. Tuesday's hearing would have given the Sandusky lawyers detailed, sworn statements from the accusers. Even when they are telling the truth, it is difficult for people to tell a story the same way twice. It is especially difficult when the details are painful, embarrassing and salacious. Testimony by the accusers in the hearing would have given Amendola a second version from the accusers to add to what they told the grand jury in Harrisburg. Most defense lawyers would never, under any circumstances, waive a preliminary hearing in Pennsylvania. In fact, prosecutors and police have long sought to eliminate or change the structure of the state's preliminary hearing procedures because they can harm their cases. Defense lawyers would fight legislation to eliminate the hearings because of the obvious and dramatic advantage they offer to the defense.

[+] EnlargeDottie Sandusky
AP Photo/Gene J. PuskarBy waiving the preliminary hearing, Jerry Sandusky (with his wife, Dottie) will wait for the trial to face his accusers.

What does the waiver of the hearing tell us about Sandusky's response to the charges against him?

Sandusky and Amendola are claiming innocence. Sandusky, a former defensive coordinator, said after the court appearance that he would "fight for four quarters." But the decision to waive the hearing -- and Amendola's statements in a lengthy press conference later Tuesday morning -- might offer a preview of their trial strategy. They will, of course, attack the credibility of the accusers. But more importantly, Amendola twice said, "Guilt will be decided at trial by a judge or a jury." (The italics are ours. Read on.) He also asserted that he will make no effort to move the case out of Centre County, where Penn State is located. In these statements, Amendola might be raising the possibility that Sandusky will waive his right to a jury trial and submit to a bench trial, with visiting Judge Robert E. Scott determining guilt or innocence. In fact, that might be Sandusky's best hope. A jury in Centre County or anywhere else quite possibly will be repulsed and disgusted with the testimony and evidence against Sandusky. It could be difficult for a jury to determine, accuser by accuser, who is telling the truth if the jurors are blinded by the horror of the accusers' stories. A judge, in this line of thinking, would be better able to evaluate the relative merits of the accusers' testimony and thus would be better able to consider the inconsistencies in their accounts. A judge, who has spent a career evaluating the credibility of witnesses in court, could better set aside the unsavory aspects of the testimony and make objective calculations about the truthfulness of each claim from each victim. If Sandusky's lawyers are able to discredit some of the 10 victims with attacks on their credibility, it might be their best chance to reduce the time Sandusky will spend in the penitentiary. Don't be surprised if Sandusky and Amendola waive the jury trial in the same way they waived the preliminary hearing. It is highly unorthodox as a strategy, but it might be their best shot in a case that appears to offer them little hope.

Back to Tuesday's decision. Why would Sandusky and his attorney have waived the preliminary hearing?

In the hearing, the accusers would have offered testimony about what Sandusky allegedly did to them. Their testimony would have consumed an entire day in court and maybe even extended into a second day. Sandusky and Amendola were not happy with the prospect of the enormous media coverage that would have been given to the accusers' stories. They balanced the trial preparation advantages offered to them in the preliminary hearing with the potential fallout of the coverage and decided to try to manage the coverage. It is a highly questionable decision from the point of view of trial preparation, and it is a cynical attempt to manipulate media coverage. They traded away an exceptional tool for trial preparation for a news cycle that features Amendola's claims of Sandusky's innocence and Amendola's attacks on the veracity of Mike McQueary, the assistant coach who told the grand jury he saw Sandusky raping a boy in the shower.

[+] EnlargeJoseph Amendola & Sandusky
AP Photo/Gene J. PuskarOne possible explanation for the decision by Joe Amendola, right, to waive the hearing: He can better manage the media coverage this way.

How important is Mike McQueary's role in all of this?

Amendola is already using what appear to be conflicting statements by McQueary to attack his veracity. In his lengthy Tuesday press conference, Amendola described three accounts that McQueary has reportedly given of the shower incident -- the statement to the grand jury, a series of emails, and statements McQueary reportedly made to a physician friend. If the conflicting statements are important in the attack on McQueary, the statements that would have been made by the accusers in the preliminary hearing are also important. It's another indication of the significance of what Amendola and Sandusky sacrificed by waiving the right to Tuesday's hearing.

Is there any chance that Sandusky will negotiate a plea of guilty and bring this nightmare to an end?

It is not likely, but it could happen. Both Sandusky and Amendola insist that Sandusky is totally innocent, and they vow to fight the charges. But Amendola did say this in the press conference in response to a question on a possible plea bargain: "You call 20 to 40 years a plea negotiation?" That statement seems to indicate that there might have been some discussion about a plea and a possible prison sentence. The only possible source for the possibility of a negotiated 20-to-40-year sentence is the prosecution. So, it appears, there has been some early negotiation. But in addition to a lengthy sentence, a problem for Sandusky in a plea bargain is that it would be an important, if not conclusive, factor in the civil lawsuits that accusers are already filing against Sandusky, the Second Mile Foundation and the university. The accusers would be permitted to use the guilty plea to show that Sandusky is liable for huge sums in money damages. Still, even this problem can be solved with a plea of "nolo contendere" or no contest. Such a plea would allow a negotiated settlement of the criminal charges without giving anything away on the civil lawsuits.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.

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