Running Out of Options

In just four days from now, jury selection is scheduled to begin in Centre County at the trial of Jerry Sandusky. Sandusky faces more than 50 charges related to his alleged sexual abuse of 10 boys.

This week has brought a flurry of legal activity, most of it involving efforts by Sandusky's attorneys to get somebody - anybody - to keep jury selection from starting on June 5. The senior judge handling the case had already scheduled a hearing for Wednesday, May 30 to hear arguments on pre-trial motions. Those motions would include efforts by the defense to have charges involving three of the alleged victims dismissed. Sandusky was not scheduled to attend.

The week's first surprise happened the day before, on Tuesday. The judge, prosecutors, defense attorneys and Sandusky met in Bellefonte for an unannounced meeting. When they came out, no one said what it was about. Naturally, much speculation involved whether they might be discussing a plea deal. One legal expert thought that maybe the judge was making sure that Sandusky understood what could happen if he didn't take a plea.

The answer turned out to be none of the above. A couple hours before the start of Wednesday's hearing, a court document posted online solved the mystery (two mysteries, really). The document revealed that a sealed motion filed a few days earlier was a request by the defense to delay jury selection. The motion was sealed because it made references to secret grand jury testimony. The hearing on Tuesday turned out to be all about that motion to delay, and on Wednesday morning, the judge said no.

Wednesday's hearing proceeded with little drama. Sandusky did not show up and the whole affair lasted only an hour or so. Later that afternoon, attorneys for victims rights groups and for several of the alleged victims filed motions asking that the alleged victims be allowed to keep their real names secret. We are still waiting for the judge to rule on those motions and on the defense motions to dismiss the charges involving three of the alleged victims.

While we wait, the defense has been busy continuing its efforts to delay the start of the trial. On Thursday, it asked the state Superior Court to step in and review the judge's denial of the motion to delay. Shortly after noon on Friday (today), the Superior Court said no. By Friday afternoon, the defense had gone up the ladder and asked the state Supreme Court to intervene. So far, no response.

So, here's what I think. I think that Sandusky's defense is getting desperate. I think they waived the preliminary hearing in February December and counted on getting a few delays as the trial date approached. This judge gave them one delay - and that's it. Now the trial date is just days away and the defense is doing anything and everything it can think of in an effort to get another delay. Superior Court has already refused to get involved at this stage and, quite honestly, I can't imaging the state Supreme Court intervening now, either. Appeals courts seem to work best when the appeals are made after the trial, not before. A no-nonsense judge and some potential legal miscalculations seem to have backed the defense into a corner.

As I've written here before, I believe that the goal of Sandusky's attorneys has been to keep him out of prison as long as possible. Now that a trial appears imminent, "as long as possible" could turn out to be a lot shorter than they  had hoped.

Therefore, given that higher court intervention seems unlikely at this stage, what's "Plan B" if I'm one of Sandusky's attorneys? Do I cut a deal with prosecutors and push hard for Sandusky to have a chance to get out of prison before he dies (he's 68 now)? If I decide to cut a deal, when should I pull the trigger on it - at the start of jury selection? Before opening statements? Maybe after testimony from someone who's not an alleged victim (assuming the prosecution doesn't call an alleged victim as witness #1)? Or, do I risk going through the trial to the end and take my chances with the jury?

Personally, I understand that Sandusky maintains his innocence. And, he's innocent until proven guilty. But, I have to believe that detailed and emotional testimony from at least seven alleged victims (assuming the judge grants the defense motion and dismisses charges involving three victims - and I'm not sure he'll actually do that) will not work in Sandusky's favor when it comes time for the jury to deliberate and, possibly, for the judge to sentence. My opinion: It's in the best interest of Sandusky and his attorneys to work out a plea deal even though that might severely hamper any chance of an appeal.

A co-worker made a good point that the prosecution may also be motivated to work out a deal in order to spare the alleged victims the pain of testifying. Also, some of their evidence/testimony may not be as reliable or as credible as they might like. But, any terms of a deal would have to be tough enough to satisfy the alleged victims, their families and the community.

Either way - plea or no plea - this case continues to fascinate.