Jennifer D. Wade Journal

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Blog posts June 2012

Sandusky: A Simple Case

Marcia Clark rose to fame by complicating the OJ Simpson case so much that when the jury heard the defense say, "If the glove don't fit, you must acquit," they did. But, she got it exactly right in her analysis of the child sex case against Jerry Sandusky: Simple.

I have to admit, I really hadn't thought of it that way. Maybe because I was following too closely and knew about all the motions and affidavits and subpoenas; or maybe because the case involved 10 alleged victims and nearly 50 separate charges. Somehow, it seemed complicated. Based on what I'd read and heard, I thought his guilt was obvious. Still, it seemed like the jury would have a lot to sort through and I expected a split verdict with Sandusky guilty on maybe 30 of the 48 counts.

After two days of deliberation, on the night of Friday, June 22, a jury in Centre County did, in fact, deliver a split verdict - guilty on 45 counts, not guilty on 3. Simple.

Clark made her comments on CNN (I think) on the first night of deliberations (I think). Her point was that the case was simple because it came down to this: either the jury believed the alleged victims or they didn't. The jurors didn't have much physical evidence to sort through. There was no DNA evidence. Just a few creepy letters written by Sandusky and audio recordings of Sandusky's creepy phone interview with NBC. While that evidence didn't put Sandusky in a good light, I don't think it would have been enough to sway any jurors who might have had doubts about his guilt.

Either the jurors believed the alleged victims or they didn't. At 45-3, clearly they did. The only counts Sandusky was acquitted on were ones where no one saw - or could remember seeing - a specific act. If an alleged victim said it happened and could remember it happening, guilty. Simple.

So, Sandusky is now behind bars awaiting sentencing, probably sometime in September. The maximum is somewhere in the neighborhood of 440 years. Given Sandusky's age of 68, even a minimum of 25 years will amount to a life sentence, but you know the minimum is going to be a lot more than that.

On tape, Sandusky's son Matt talks of sex abuse

After sentencing, Sandusky's lawyers have said they will file appeals. Based on post-conviction comments from Joe Amendola and Karl Rominger, their bases for appeal would seem to be a) we weren't prepared, and b) we didn't do a very good job. Neither man has said anything that indicates they have proof that any of the alleged victims lied or that they have evidence which could cast doubt on Sandusky's guilt.

Given that Amendola chose to waive the preliminary hearing, which would have provided an opportunity for the defense to hear testimony from at least some of the alleged victims and other prosecution witnesses before the trial, I don't see the "we weren't prepared" appeal going very far. The ineffective counsel appeal may have a slightly better chance since it seems like Amendola took a pretty big gamble by passing on the prelim - and lost.

My personal opinion is that Amendola waived the prelim in the hopes that the judge would grant several delays, thus keeping Sandusky out of jail as long as possible. But, this judge wouldn't play. He gave the defense one delay (from May to June) and that was it. And, when the defense tried to quit just before the trial with claims they weren't prepared, the judge said no way.

I think that Amendola and his team knew exactly what they were doing and tried everything they could to keep the trial from happening so quickly. Their gambles didn't pay off, but I don't believe that a few extra months would have made much of a difference.

As ONE WRITER put it, Sandusky is "Guilty. Guilty. Damn, Damn Guilty." Simple.

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Two days into the start of testimony at Jerry Sandusky's trial and, from someone watching/reading coverage from home, things are not looking good for the defense. If the defense strategy is to make prosecution witnesses, including alleged victims, look like liars, they don't appear to be succeeding.

After opening statements yesterday, the prosecution called alleged Victim #4 as its first witness. He's now in his late 20s, but described being showered with gifts and molested by Sandusky some 15 years ago. There were even love letters and a sort of contract written by Sandusky to the alleged victim. He testified that he didn't tell anyone about the abuse because he liked the attention, which included trips to at least one Penn State bowl game. He said another reason he didn't come forward is because he thought he was the only one. The man held up under cross-examination, denying any profit motive for coming forward now.

Today, on Day 2 of testimony, the teenager known as Victim #1 was the first to testify. He's the young man from Clinton County who finally got the attention of law enforcement when he reported his claims against Sandusky. His allegations are what started the whole investigation that has now led to charges against Sandusky and to great upheaval at Penn State.

Whereas Victim #4 was solid and steady on the stand, the younger Victim #1 reportedly sobbed during most of it, pausing often to gather the courage to go on. He described how Sandusky started with kisses and worked up to oral sex, even saying to the boy one time, "Now it's your turn." The boy described how, after a while, he tried to hide from Sandusky. He said when he told a high school official what was going on, that person didn't believe him because Sandusky had "a heart of gold." The boy and his mother went to the county, and that's when the ball started rolling.

On cross, the defense didn't score any points when the boy tearfully said that testifying was very difficult and asked Joe Amendola why he kept asking the same questions over and over.

The next witness brought the surprise of the day. The prosecution called former Penn State Quarterbacks coach Mike McQueary.

He's the one who claims to have seen Victim #2 (who has yet to be identified) being molested by Sandusky in 2001 in a building on the Penn State campus. It's McQueary's story that led to the charges against two Penn State officials and the firing of Joe Paterno and university president Graham Spanier. McQueary was scheduled to testify but wasn't expected to do so until later in the week.

McQueary confidently told his story of what he saw and explained any discrepancies (i.e. the initial grand jury report said the incident happened in 2002; that has now been changed to 2001). He also stated that he wants to coach football at Penn State when the defense asked him why he filed a whistleblower lawsuit against the university.

McQueary may have been the witness the defense had the best chance to discredit, but it doesn't seem like they made any significant dents in the prosecution's case. Even if they had damaged McQueary, I'm not sure how much it would matter, at least not to the overall case against Sandusky. We've already had compelling testimony from two alleged victims with six more waiting in the wings. If those six are anything like the first two, Sandusky is going to have a hard time mounting any kind of credible defense. So far, Amendola still says there's a chance that Sandusky could testify in his own defense but, based on earlier interviews Sandusky did, putting him on the stand doesn't seem like a good move. Star defense attorney Alan Dershowitz is not impressed.

So, we're back to the question of will the defense cut a deal and, if so, when will they do it? The longer this goes on, obviously, the less likely there is to be a plea. My belief is that a plea is Sandusky's only chance to get out of prison before he dies. On the other hand, a plea doesn't guarantee that, so maybe, as the defense, you just play it out until the very end. I think it's a tough call for Sandusky's attorneys. They have to know that they're losing, but Sandusky himself doesn't seem to think he did anything wrong. If compelling testimony from two (or more) alleged victims doesn't change Sandusky's mind, what chance do his attorneys have?

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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.    

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