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Jerry Sandusky's first day in court is Tuesday, and it promises to be dramatic. Yes, it's merely a preliminary hearing in Bellefonte, Pa., but it will be anything but routine -- and not just because of the disturbing nature of the child molestation charges against Sandusky.
The other reason it won't be routine is that under a quirky Pennsylvania law, Sandusky is entitled to face his 10 accusers in this very early stage of the judicial process. That's something that does not happen in preliminary hearings in most states.
In what is likely to be an ordeal for Sandusky's alleged victims, they will be compelled to tell their stories for a second time in front of an audience. The first came when they testified before the grand jury in Harrisburg; a third will come if visiting Judge Robert E. Scott decides at the conclusion of the hearing to hold Sandusky for trial on the charges -- the most likely outcome.
The accusers' testimony will be their first public descriptions of the depravity they described to the grand jury, allegations that have engulfed the Penn State football program and the entire university in arguably the worst scandal in the history of sports. With Sandusky and his attorneys sitting in a packed courtroom, the accusers will parade to the witness stand and tell the stories outlined in the grand jury report about fondling and oral and anal sex acts with Sandusky and, in the case of "Victim 2," a rape in a shower.
|Jerry Sandusky's defense team should learn the strength of the prosecution's case on Tuesday.|
How will the accusers act when they find themselves in a courtroom only two or three yards from Sandusky? How will Sandusky react as he listens to their allegations? Will Sandusky's attorney, Joseph Amendola, be aggressive in his cross-examinations of the accusers in an attempt to rehabilitate Sandusky's shredded reputation? Under Pennsylvania law, he cannot attack their veracity. But he could attack with questions that use parts of their stories to establish a scenario of innocence. He could question them, for example, about games and horseplay that imply innocence.
In most states, the victim/accusers are spared this ordeal. A typical preliminary hearing is based on testimony from an investigating police officer who summarizes the investigation and the findings. The investigator is permitted to describe what the victims said instead of presenting direct testimony from the victims themselves. In the Kobe Bryant rape investigation in Colorado, for example, the accuser did not testify during the preliminary hearing; an Eagle County detective described her version of what happened in Bryant's hotel room.
Although the original purpose of the legislation that requires the preliminary hearing in Pennsylvania was to prevent prosecutors from filing charges without sufficient evidence, it has become "an exceptional discovery device" for people charged with crimes, according to Stan Levenson of Pittsburgh, a top Pennsylvania criminal defense attorney who is not involved in the Sandusky case.
Judge Scott, 68, will travel 110 miles from Greensburg, Pa., near Pittsburgh, to preside over the hearing. His assignment came after the top judge in Centre County, which includes the Penn State campus, asked for an out-of-county judge "to avoid the possibility of any perception of impropriety."
President Judge David E. Grine of Centre County made the request in the wake of Judge Leslie Dutchcot's releasing Sandusky after his first arrest on an unsecured bond of $100,000, rejecting a prosecution demand for $500,000 bond and electronic monitoring of Sandusky's whereabouts. Dutchcot's role in that decision came under criticism when media outlets reported that she has done volunteer work for Second Mile Foundation, a charity Sandusky founded which, according to the grand jury, became a source of his victims. In addition, the chairman of the Second Mile board, according to these reports, donated to Dutchcot's election campaign when she ran for judge.
In its announcement of Scott's assignment to the Sandusky case, the Administrative Office of Pennsylvania Courts stated that Scott has "no known connections with Penn State, the Second Mile charity, nor any officers or representatives of any of those entities." Scott is a graduate of Oberlin College and the William and Mary Law School.
|For the first time since the allegations became public, Jerry Sandusky will face his accusers in court on Tuesday.|
The hearing Scott will conduct might be an ordeal for Sandusky's victims, but it will be an opportunity and an advantage for his lawyers, who can use it to "listen and learn," according to Levenson and other prominent Pennsylvania defense attorneys contacted by ESPN.com. In a preliminary hearing, Levenson says, "We are able to see and to evaluate each of the witnesses; we can see their strengths and their weaknesses and are able to evaluate the prosecution's evidence."
Sandusky's defense team, then, should be able to measure those strengths and weaknesses by the impressions the accusers make as they testify. Do they appear to be truthful? Are they persuasive? Do they transmit an aura of honesty? If a witness is tentative, it's a weakness. If a witness is too slow in an answer, it is a sign of weakness as a witness. These impressions must be balanced with the damage that Sandusky allegedly did to them with his abuse. Is the weak demeanor the result of what Sandusky did? It is a very subjective judgment that Amendola will make.
In another quirk of the law that is unique to Pennsylvania, prosecutors from the office of Pennsylvania Attorney General Linda Kelly must offer enough evidence against Sandusky to establish what lawyers and judges call a "prima facie" case. That means they must establish at least a first impression of guilt. That's a burden of proof that is greater than the demands made of prosecutors at the preliminary hearing stage in most states. It requires some proof of each aspect of each of the 40 charges against Sandusky.
"To make a prima facie showing, the prosecutors must bring in each of the victims or someone who saw what supposedly happened to the victim," says Richard Joyce of Pittsburgh, another of Pennsylvania's leading criminal defense attorneys. "They must offer proof of each element of the crime, the touching, the assault, and the intent or the age of the victim."
Although hearsay evidence is barred in a jury trial, it can be used in a preliminary hearing. It's one of the rare elements of the Pennsylvania procedure that is typical of other states. A detective, for example, can describe what another witness has said about Sandusky. But even with the allowance of hearsay testimony, the Pennsylvania law requires direct evidence of the crime, evidence that can come only from victims or eyewitnesses. If prosecutors offer no evidence on one of the essential aspects of the crime charged, Judge Scott would be obligated to dismiss the particular charge.
The credibility of the victims and any other witnesses is not a factor in the outcome of the preliminary hearing.
"There must be some testimony that a crime happened and that Sandusky did it," Levenson said. "But the veracity of the victim is not a factor. If he says it happened, then that is enough for the preliminary hearing, even if the judge does not believe the witness."
Levenson added, "I never make any objections during a preliminary hearing. I want to know everything I can know about what the prosecution has in its evidence. [The hearing] is an opportunity to see what they have, and it is a major step in the preparation of a defense to the charges"
The early look at the prosecution evidence should allow Sandusky and his attorneys to determine whether they should consider a plea deal. Amendola has said in an earlier statement that "[Sandusky] and I have had no discussions about any sort of deal."
But powerful testimony from 10 victims could force Sandusky and Amendola to reconsider their situation despite their claims of Sandusky's innocence. Even with the repeated claims of innocence from Sandusky (including a recent claim from his wife), the accusers' stories of abuse and exploitation that they endured as boys could push Sandusky to open the door that leads to negotiation and settlement.
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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