The allegations surrounding Jerry Sandusky and Penn State University are a mess – and are quickly going from bad to worse. Sandusky already stands charged with 40 counts of sexually molesting children, and more victims seemingly surface every week. One civil lawsuit has already been filed, the athletic director and school president have been fired, and Joe Paterno’s illustrious 40 year career as college football’s winningest coach has ended in disgrace – forever tarnishing him and his legacy.
However, as a criminal defense lawyer, I am very troubled by the handling of his case by his lawyers. Sandusky hired Joseph Amendola to represent him in this quagmire. By all accounts, Amendola is a good lawyer with a solid reputation for defending those charged with serious crimes – including sexual assault against children. But his handling of this case, and his client, is very curious, and his defense strategy very difficult to decipher.
When Sandusky was first arrested, the media descended on the case like moths to a flame. Sandusky had microphones shoved in front of him almost immediately, and his responses were pitifully weak – constantly repeating “my lawyer has instructed me to not answer any questions about this case.” When asked “you can’t even tell us that you are innocent?” He still refused to answer. His refusal to claim innocence certainly made him look guilty. If he was going to answer questions by the media at all, he needed to be screaming as loud as possible “I did not do it! I am innocent of these charges!”
Sandusky’s lawyer was obviously trying to counteract the frenzy of prejudicial publicity and media coverage his client was receiving. This can be a wise strategy when representing a high profile client or otherwise being involved in a case with strong media attention. However, Sandusky fell flat on his face, and given his performance in front of the media earlier in this case, it is amazing that any lawyer would have expected anything different.
When interviewed by Costas, Sandusky admitted to showering with kids. He then hesitated when asked whether he was sexually attracted to boys. Later, when given the chance by the NY Times reporter to explain his hesitation, Sandusky again “fumbled” his answer. He all but admitted that he is in fact attracted to them. Finally, his lawyer literally had to save Sandusky by interrupting and helping him finish his answer. In another interview, Sandusky again stumbled on camera when asked whether he was attracted to young boys. He hesitated, and went back to the “I love kids” stock answer he has been giving, until his lawyer interjected to him: “but not sexually, right?”
As stated by one well known legal observer, Sandusky had shown he could not be trusted to answer even the simple question of being sexually attracted to young boys, with a resounding “of course not!” As a result, putting him in front of a camera and letting get interviewed at all is a very questionable strategy.
But if that were not enough, it does not end there. Sandusky’s lawyer has stated publicly that he does believe does believe that his client is innocent of the charges against him. However, his lawyer went on to finish his answer by stating that if he is guilty, then Sandusky should go to jail for the rest of his life. Then, after several new victims came forward also accusing Sandusky of sexually abusing them, Sandusky’s lawyer incredibly stated that he may have to tell his client he needs to plead guilty!
Finally, Sandusky and his lawyer today waived his preliminary exam, allowing his case to proceed to trial without the benefit of a probable cause hearing – including the cross examination of the victims.
Taken individually, these decisions by defense counsel can perhaps be understood. Many experienced defense lawyers would agree with the idea of fighting the battle of public opinion in high profile/media cases, to begin to get the defendant’s side of the story out into the public. Preliminary exams in sexual abuse cases may be waived occasionally – given that the victims have already testified before the grand jury, and the prosecutor is given a chance to let the accusers testify in open court, without the defense having a chance to present their case or rebut the charges. In fact, Sandusky’s lawyer said that holding the hearing “really would have left us with the worst of all worlds,” for that very reason.
However, taken together, these actions appear to paint the picture of a defense without direction or a true strategy. Given the extremely poor job Sandusky had done at “defending himself” in his answers to the press, it is difficult to understand how his lawyer allowed him to continue to be interviewed by the media. This is even more questionable in the case of a live TV interview. In a live interview, the lawyer has no idea what the client could say, and it is too late to fix it once it does. So, when Sandusky tells Costas that he has showered with underage boys, or suggests that he is attracted to them, he looks both sick and guilty.
Furthermore, according to Costas, the original interview was scheduled to be of just the lawyer alone. A short time before taping, the defense lawyer offered to have Sandusky available for a live phone interview. Even Costas said that while it was great for his interview, he thought it was crazy from the defense point of view.
There is always some risk at holding a preliminary exam, and letting the prosecutor present the charges through the victims could back fire. But given the limited discovery provided in criminal cases, a defense lawyer should always err on the side of actually seeing the witnesses testify in court, and evaluating their testimony in a contested hearing as opposed to the one sided proceeding that occurs in the grand jury.
Finally, on the way out of the courthouse, Amendola told reporters that if anyone believes assistant coach Mike McQueary’s story about catching Sandusky in the shower with a victim, and then doing nothing, then “I suggest you dial 1-800-REALITY.” It turns out that’s a number for gay-sex phone service.
There is simply no reason for the lawyer of a person accused of sexually molesting several boys to make offensive, off color jokes about gay sex lines, let alone public statements that he may have to convince his client to plead guilty, and that if convicted he should go to prison for the rest of his life! That is just bad lawyering, anyway you look at it!