Jerry Sandusky: Legal Commentary
October 09, 2012: While a Pennsylvania judge was handing down a sentence of 30-60 years in state prison, Jerry Sandusky seemed bewildered and defiant. He gave a 15-minute long statement in court, which some have likened to a pre-game motivational speech, painting the picture of his life in prison and declaring firmly that he was not guilty of the sex abuse convictions. Prosecutor Joe McGettigan later described the speech as an act of denial.
From a lawyer’s perspective, Sandusky’s sentence was handed down pretty much as expected. The substantial prison time ensures that Sandusky will die incarcerated, because he cannot under any circumstances be released before 30 years. The judge certainly could have “thrown the book” at Sandusky by sentencing him to many hundred of years in prison, but the result would have been the same no matter what: Sandusky will die in prison.
August 20, 2012: Rumors are flying that the Jerry Sandusky scandal has now come under a federal investigation, with new victims and new witnesses coming on to the scene. If federal law enforcement can show that Sandusky’s illegal conduct occurred across state lines, or somehow used the U.S. Mail, he might face federal allegations of the same sort that plagued him in Pennsylvania.
If the Department of Justice does choose to prosecute Sandusky in federal court, it’s hard to say what they hope to gain. Sandusky will already spend the rest of his life in prison. If indicted, he will have to spend a fortune in mounting another legal defense — money that he could have spent paying restitution to his victims.
July 12, 2012: The Freeh Report, which found that PSU officials failed in their duty to protect the children from the Second Mile Charity, who were “lured” to the Penn State campus with the promise of football games only to be victimized by Jerry Sandusky, will open the floodgates to civil litigation.
The university itself, as well as the individuals named in the report — former Penn State president Graham Spanier, former vice-president Gary Schultz, former athletics director Tim Curley, and the estate of former head coach Joe Paterno — are all eligible for civil lawsuits by the victims of sex abuse and their families. They can be sued for not acting to protect the children when they had knowledge that the children were in danger.
The Freeh Report also will affect the criminal trials of Schultz and Curley, both of whom are accused of lying to a Pennsylvania Grand Jury. Both men testified that they did not know of the Sandusky sex abuse — statements now proven false by the Freeh Report.
The story from the janitor is especially disturbing. If that was the culture on the lower rungs of the college staff, what does that say for the university heads? It is clear that the football program was allowed to run unchecked, as long as it kept bringing in good publicity — and lots of money — for the school.
Since the new recommendations from the Freeh Report include a total overhaul of the reporting system, now the Clery Act — named for a Lehigh University student found murdered and sodomized in her dorm room — may actually have some teeth. The 1990 law was passed to protect university students from violence, and it requires annual security reports and crime logs from college police. It requires that any report of on-campus crime be made public — steps that certainly were not taken to protect the victims of Sandusky’s abuse.
At the heart of this entire case is that parents and families should be able to send their children to college knowing that they will be safe. Whether they are university students or children who are using the college campus through another program such as Second Mile, university campuses should be a safe space for education and personal growth, not places where child predators and other criminals are hiding in plain sight.
The death of Penn State’s head football coach Joe “Joe Pa” Paterno on January 22, 2012 put a serious damper on the drama of the Sandusky court proceedings. Without Paterno’s testimony as to what — and how much — he knew about Sandusky’s conduct, the trial was be far more streamlined and less high-profile because “Joe Pa” was the emblem of Penn State’s football program in a way that Schultz and Curley simply will never be. Come on, there’s no statue of Tim Curley on campus, right?
Whether “Joe Pa” died of a broken heart, as some college football fans have speculated, is not for us to say, but the stress of being involved in criminal investigation is nothing to sneeze at. However, “Joe Pa” was never going to be a main witness for the prosecution. He simply didn’t have the kind of first-hand knowledge that McQueary did, and if Paterno’s grand jury transcript is any clue, his testimony would have largely been hearsay.
Sandusky’s defense team chose to waive preliminary hearing last December, a decision that might seem like a major capitulation by the defendant. We at Wild About Trial think this was the best decision. If the case had gone to prelim, the media circus would have rivaled that of the Conrad Murray trial, and every gory, gruesome detail of the assaults against these children would have been paraded out for all to see. After the whole nation watched that, no jury in the world would be able to be impartial when the case got to trial — everyone would be out for blood.
Every defendant has a right to waive prelim, and this was one example of using that right wisely. In some cases, preliminary hearings can be a good way to collect evidence and get a thorough picture of a case, but when there’s already been a grand jury hearing and a civil suit against Sandusky, the facts are already out in the open. The defense won’t learn anything they could not have read in a newspaper by taking the case to a preliminary hearing, and meanwhile they would be putting the last nail in Sandusky’s conviction coffin.
Trial-watchers are anticipating a lengthy, involved trial with dramatic twists and turns, as notoriously theatrical defense lawyer Joe Amendola plans to mount a rigorous attack on each of Sandusky’s accusers. At Sandusky’s age, even one conviction could result in life imprisonment, so Amendola will be going to the mat with nothing to lose.
Especially intriguing will be the testimony of Mike McQueary, the assistant who said he saw Sandusky anally raping a 10-year-old boy in the showers of the Penn State locker room in 2002 — or was it in 2001, as he later changed his account of the facts? Expect Amendola to vigorously attack this witness’ credibility.
Another thing to watch out for will be the testimony of the alleged victims themselves. Some of them are still minors and may be given some leeway by the judge in their testimony. In sensitive cases like this one, jurors don’t like it when defense lawyers are aggressive toward the alleged victims, so Amendola will need to dial back his style quite a bit for these younger witnesses.
Wild About Trial will be in the courtroom with daily briefings direct from Happy Valley.
After a moving speech about the importance of jury service, Judge Cleland got down to business. He stuck to a tight schedule, and a jury was selected pretty quickly, given the severity of the charges, the number of anticipated witnesses and the media attention to the case. That definitely sets the tone for a no-nonsense trial.
Nearly every juror selected has some connection with Penn State, and many said that they personally knew someone on the witness list. Judge Cleland was adamant that he would not let that stand in the way of picking a jury; after all, nearly everyone in town has a connection with the college — a jury of Penn State people was unavoidable.
Those personal connections, however, could make things tougher for Sandusky as a defendant. Penn State employees, alums and fans are naturally outraged at the negative publicity toward the college in the wake of the accusations against Sandusky. Sandusky single-handedly marred Penn State’s reputation in a deep and profound way, and many jurors may be angry at him.
On the other hand, there could be some Penn State-affiliated jurors who will always support the home team, even when they’re down. Some potential jurors even showed up to jury selection wearing Penn State attire, a possible sign that they would continue to stand with the college.
One strategy the defense might take, given a jury of people somehow affiliated with Penn State, is to call university leaders to testify to Sandusky’s character. If a witness is highly respected in the Penn State community, jurors may have a lot of confidence in that testimony.
Sandusky’s Defense Strategy
Ultimately, Jerry Sandusky is putting all of his eggs in the Happy Valley basket, so to speak. He is counting on one or two jurors putting the interests of Penn State, the university and the football program, above the interests of justice. And because so many of these jurors have strong connections to Penn State, whether alums, employees or fans, it is entirely possible that one or two of these jurors may do precisely that. At this point — with the trial at a close and all the evidence on the table — that is really Sandusky’s only remaining hope.
Jerry Sandusky’s trial moved along much faster than anyone could have predicted, especially for such a high-profile case. In large part, this was due to Judge Cleland’s iron fist, as he makes sure that neither side gets sidetracked with theatrics. The emotional, damning testimony of three alleged victims and former Penn State graduate assistant Mike McQueary appears to leave few options for Jerry Sandusky’s legal defense.
As the remaining alleged victims took the stand, the defense tried to hone in on inconsistencies in their stories — changes in dates, times and physical observations. Victim #7’s testimony was even met with questions by the defense about an unrelated 23-month prison term he served — an apparent effort to discredit him based on a criminal past. The defense has also asked the witnesses if they stand to make money from their testimony, for example, from the civil lawsuit against Sandusky’s charity, The Second Mile.
Despite the defense’s persistence and the claim that over 100 witnesses will testify in defense of the so-called “tickle-monster,” the alleged victims’ accounts are consistent, credible and likely to hold up to the jury. Their testimony, taken as a whole, shows a clear pattern of abuse — everything from the alleged victims’ ages, the locations of the crimes, the activities leading up to the sexual contact and how he would then cut ties has been remarkably similar.
Sandusky’s defense team may, if Judge Cleland permits it, present evidence that he has Histrionic Personality Disorder (HPD). However, HPD, a dramatic personality disorder in which the afflicted person holds distorted views of him or herself, is not normally linked to sexual abuse. The Diagnostic and Statistical Manual of Mental Disorders, an expert publication, is even being revised to possibly remove this disorder altogether.
Sandusky faces a maximum of 460 years if convicted, and without the mental health card, he has little left in his legal arsenal. In a trial with this many witnesses and victims coming forward, the defense will continue to have a difficult time not only disputing claims but also swaying a judge and jury.
Why Sandusky Did Not Testify
Now that the trial has come to a close, it has come out that if Sandusky had testified, the prosecution would have called his adopted son, Matt Sandusky, to testify that his father abused him when he was growing up. The tactical decision to keep Sandusky off the witness stand was truly the only possible move for the defense, given that bombshell.
There was a 40-minute behind closed doors session in judge’s chambers on Wednesday, where we believe the judge fully informed Sandusky of his right to testify in his defense and the potential problems he would face if he did so. It was probably during this session that prosecutors informed the defense of rebuttal witness Matt Sandusky, and the decision to keep Sandusky off the stand was made.
Sandusky is not a particularly chatty guy to begin with — in media appearances his statements are often punctuated with folksy expressions like “gee,” and he has trouble looking people straight in the eye — and there’s no way he would have made a strong, confident impression on the witness stand. And once McGettigan, the prosecutor, gets going on cross-examination, it would only be a matter of time before he trapped Sandusky into incriminating himself, even accidentally.
It’s impossible to know precisely what went on inside the jury room as deliberations began, but in all likelihood, the jurors began with a straw poll. It seems that most, if not all, of the jurors were predisposed to convict Jerry Sandusky from the outset of jury deliberations, but they took their responsibility seriously. They seem to have taken their time going over each charge and the jury instructions they asked for clarification on various points of law to make the best decision.
Of course, the idea of being sequestered over the weekend was probably weighing on their minds, as well.