Posted: Tuesday December 13, 2011 5:28PM ; Updated: Wednesday December 14, 2011 3:16PM
Michael McCann
Michael McCann>SPORTS LAW

Lawyer uses bizarre tactics in defense of Jerry Sandusky

Story Highlights

Sandusky's attorney, Joe Amendola, has made one strange move after another

In addition to questionable waiving of preliminary hearing, he's talking too much

Revealing key part of your defense strategy in public is never a good legal move

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Why Sandusky waived preliminary hearing
Source: SI
SI.com legal expert Michael McCann explains why the Jerry Sandusky camp waived the right to a preliminary hearing and breaks down what is likely to happen next as the case moves forward.
Joe Amendola, the defense attorney for Jerry Sandusky, held court for the media Tuesday after Sandusky waived his right to a preliminary hearing.
Joe Amendola, the defense attorney for Jerry Sandusky, held court for the media Tuesday after Sandusky waived his right to a preliminary hearing.
ZUMAPRESS.com

Jerry Sandusky's attorney, Joe Amendola, has a difficult case ahead of him. Sandusky has been indicted on 40 counts of sex crimes against boys and the number of accusers appears to be on the rise. It is thus understandable that Amendola would adopt an aggressive, even risky, strategy to rebut the accusations. Less understandable is Amendola's choice, presumably with Sandusky's consent, to begin the battle in the media instead of in the courtroom.

Consider some of Amendola's strategic choices, which seem motivated more by expected reaction from the court of public opinion than the court of law.

1. Amendola advises Sandusky to waive his right to a preliminary hearing.

Sandusky's decision to waive a preliminary hearing -- where the government was obligated to show probable cause in order for the case to proceed to trial -- is surprising and questionable. To be sure, the government would have been able to show probable cause. Waiving the hearing also means that, at least for the time being, Sandusky avoids seeing his accusers testify against him in person. Similarly, Sandusky dodges the embarrassing spectacle of his family and friends hearing what the accusers say about him.

But waiving the hearing may prove to be a gift to prosecutors: Sandusky's accusers now escape the possibility of making a mistake while testifying, and they also avoid the possibility of contradicting or even perjuring themselves based on what they would have testified and what they would later testify in a trial. Unless Sandusky hopes to obtain a plea deal with prosecutors before a trial date and thus prevent his accusers from ever testifying in a criminal hearing, today's decision to walk away from a courtroom battle seems to carry more downside than upside. The decision also appears at odds with Amendola's spirited, if not bombastic, rhetoric outside of court.

2. Amendola reveals details of the defense strategy.

At a lengthy press conference Amendola provided detailed answers to media questions about the defense's legal strategy. For instance, he framed the credibility of Mike McQueary as essential to the government's case against Sandusky. It is somewhat obvious that Amendola would do so. Grand jurors found McQueary to be "extremely credible", but McQueary has since provided partially inconsistent accounts as to what he saw (or didn't see) in 2002. Predictably, Amendola now insists that McQueary can't be believed and that the grand jury's decision-making may be unreliable.

Answering journalists' questions about McQueary in a pre-trial press conference, however, informs prosecutors of the style of speech and nuance Amendola might go about rebuking McQueary in a court room. Prosecutors will surely review the logical steps and dialectic devices Amendola took in explaining to the media why McQueary is not believable. And they will be more ready for them in a trial.

Along those lines, while it is expected that Amendola would emphatically profess his client's innocence, it is strange that an attorney would reveal his trial playbook before a trial -- just as it would be strange for a coach to reveal his game playbook before a game. The downside of defense attorneys' saying too much to the media is obvious: prosecutors gain insight and can better prepare for trial.

3. Amendola's use of melodramatic, non-legal verbiage.

Also in the press conference, Amendola provided curious sound bites, such as one directing people who believe McQueary to "dial 1-800-reality" (a phone number which, incidentally and presumably unknown to Amendola, goes to a phone sex service). Perhaps most awkwardly, Amendola crudely portrayed the accusers -- who if they are telling the truth are victims of heinous crimes -- as seekers of money rather than justice: "What greater motivation could there be to say 'I'm a victim' than money?"

To say the least, it is strange for an attorney to employ sensational language while discussing a client who has been charged with raping children. One might compare Amendola's commentary with that of the late Johnnie Cochran in the O.J. Simpson murder trial. Cochran, you might recall, famously quipped to the jury that "if [the glove] doesn't fit, you must acquit." There is a big difference, however, between Amendola's statements with Cochran did: while Amendola was trying to persuade the public -- who have no say on Sandusky's guilt or innocence -- Cochran was trying to persuade, and relate to, jurors who were about to decide Simpson's guilt or innocence.

Amendola's accessibility to media and his talk show-style approach raise a serious question as to his goal in representing Sandusky: Is he trying his best to defend his client or is he trying to make a name for himself at the expense of his client?

4. Amendola advises Sandusky to answer questions from NBC's Bob Costas and the New York Times' Jo Becker.

Perhaps the most baffling strategic choice in the defense of Jerry Sandusky has been Sandusky's granting of media interviews with two seasoned and highly scrutinizing journalists: Bob Costas and Jo Becker. In these interviews, Sandusky attempted to portray himself as simply loving of children. He also framed his interactions with the accusers as playful and acceptable, rather than hurtful and criminal.

Instead of accomplishing those goals, Sandusky may have admitted to lesser crimes under Pennsylvania law. He also showed himself to be ill-equipped to answer difficult, but predictable, questions about his past.

The negative outcome was not surprising: Sandusky, apparently on advice of Amendola, agreed to answer questions in a public forum from journalists who are in the business of asking difficult, probative questions -- just like talented prosecutors when they cross-examine witnesses. Also, prosecutors are now better able to detect how Sandusky answers questions and what his line of reasoning may be, should Sandusky agree to testify in his own defense.

5. Finally, if Sandusky is ultimately convicted, could he argue the conviction should be overturned due to ineffective assistance of counsel?

If convicted, Sandusky could make an ineffective assistance of counsel argument and highlight Amendola's highly questionable strategies. But Sandusky would probably fail to persuade a court to overturn the conviction.

For one, ineffective assistance of counsel normally arises during a trial, rather than in public or media forums. Along those lines, much of Amendola's questionable advice to date seems to be "extra-legal", in that it is based on interaction with media as opposed to interaction with attorneys, court officials or jurors. A court may not find the interaction relevant for purposes of overturning an otherwise valid conviction.

Second, ineffective assistance of counsel requires a court to find that but for the ineffective assistance, the defendant's outcome would have been different. Assuming the case against Sandusky proves overwhelming, Amendola's advice -- whether it be considered top-notch or dreadful -- may prove irrelevant in terms of whether Sandusky would be convicted.

Third, Sandusky is a sophisticated defendant in that he is educated and seasoned -- Penn State even listed him among faculty as a professor emeritus. Arguably, he should be considered more responsible for his litigation choices than would a typical defendant, who might be less capable of questioning his or her attorney.

Michael McCann is a sports law professor and Sports Law Institute director at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He also serves as NBA TV's On-Air Legal Analyst. Follow him on Twitter.

 
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