Jerry Sandusky trial primer: Keys to case against ex-Penn St. coach
Former PSU defensive coordinator faces 52 counts in child sex-abuse case
Several months after Sandusky was indicted, jury selection begins June 5
Analyzing the judge, prosecution, defense and impact of late Joe Paterno
Seven months after former Penn State defensive coordinator Jerry Sandusky was indicted for molesting and raping young boys, raising questions about the moral responsibility of school officials and of Joe Paterno, jury selection in Sandusky's trial begins on Tuesday. The former Penn State defensive coordinator faces 52 counts of felony and misdemeanor offenses. His trial is expected to begin on June 11 and last several weeks. If convicted of multiple felonies, the 68-year-old would almost certainly spend the rest of his life in prison.
Here's a guide on what to look for in the case.
Sandusky may be reviled by many, but the Sixth and 14th Amendments ensure that he receives a fair and impartial jury. Some have speculated that it would be impossible for Sandusky to receive such a jury, especially in Pennsylvania. No criminal defendant, however, has ever escaped criminal prosecution because a fair and impartial jury could not be found, and that includes O.J. Simpson in his much more celebrated murder trial. Eventually a jury for the Sandusky prosecution will be picked.
The jury selection process should last about a week, but could take longer, which might delay the trial. Prospective jurors will be randomly selected from Centre County, Pa. Judge John Cleland will question prospective jurors and can dismiss any number of them for cause. Plausible reasons for cause dismissal would include an affiliation with Penn State, past victimization of child abuse or preconceived views about Sandusky's guilt or innocence.
Prosecutors and Sandusky's attorneys will also have opportunities to preemptively strike prospective jurors from consideration. They need not explain their strikes, but cannot strike on the basis of race or sex. Attorneys can, however, use preemptive strikes on the basis of other attributes, including education level and employment. Prosecutors and Sandusky's attorneys may have strategies for picking -- and excluding -- jurors from backgrounds that they believe tend to have favorable or antagonistic views of police and of those accused. Judge Cleland will determine how many preemptory strikes each side receives, but each will likely receive at least 15.
Judge Cleland, a senior judge (meaning retired from active service but still authorized to serve as a judge), will preside over the trial, which will not be televised. Cleland was assigned the case after the four sitting judges on the Centre County Court of Common Pleas recused themselves. They did so to avoid the appearance of any conflict of interest because of actual or perceived ties to Penn State or to Sandusky and his former charity, The Second Mile.
Cleland is no stranger to presiding over legal matters involving children. A few years ago, he served as chairman of a state commission that investigated the "kids-for-cash" scandal. It involved a juvenile judge who took $1 million in bribes from the builder of juvenile detention centers in exchange for sentencing juvenile defendants to those centers. In reflection of his service, Cleland delivered a speech to the Commission for Justice Initiatives in Pennsylvania in 2010. While the speech was about the kids-for-cash scandal, it now seems almost prophetic of Sandusky and Penn State. "[T]ake a step back and you can readily see what should have been foreseen," Cleland warned. "The possibility that hiring practices could enable someone in power to be insulated from scrutiny. The possibility that a culture could exist that discourages reporting wrongdoing and rewards silence and accommodation."
Pennsylvania attorney general Linda Kelly has invested considerable resources in prosecuting Sandusky. Senior deputy attorney general Joseph McGettigan will serve as the government's lead prosecutor. McGettigan gained acclaim in 1997 when he successfully prosecuted chemical fortune heir John E. du Pont for the murder of Olympic wrestler Dave Shultz (a jury would convict du Pont of third-degree murder and sentence him to 30 years in prison).
McGettigan's case against Sandusky is mainly based on the testimony of witnesses who say Sandusky sexually abused them between 1994 and 2009. Eight men, now ages 18 to 28, are expected to testify and graphically describe sexual acts, ranging from inappropriate touching to rape. They will say the crimes mainly occurred on Penn State's campus or in Sandusky's home. They will also characterize Sandusky as a predator. Sandusky met them through The Second Mile, which Sandusky established to provide mentoring to at-risk boys and girls.
Expect McGettigan and other prosecutors to identify similarities in how Sandusky befriended and abused his purported victims. Prosecutors will also emphasize that it is several men, not just one, making the same core allegations, and that it would take an elaborate conspiracy for all of them to be lying or misremembering.
While the testimony of alleged victims will likely prove powerful, McGettigan is more limited in using other key witnesses. Penn State athletic director Tim Curley and former vice president Gary Schultz should be influential witnesses. Each worked with Sandusky and, according to prosecutors, knew of or had reason to suspect Sandusky's criminal conduct. Both, however, have been charged with perjury and failure to report related to Sandusky. If called by McGettigan to testify, they will likely invoke their Fifth Amendment privilege to avoid disclosing information that could be used against them.
While the allegations against Sandusky make him seem like a monster, they remain mere allegations until a jury decides otherwise. Sandusky's choice of attorney Joseph Amendola signals that he will put up a fight. Amendola is known as a skilled defense attorney who is unafraid to employ unconventional and daring strategies. Trial observers received a taste of those strategies when Amendola had Sandusky speak to Bob Costas and The New York Times. Amendola knows nothing short of a zealous defense will keep his client out of prison.
Amendola's defense will center on (1) undermining the government's case as undeveloped and as riddled with exaggeration and fiction; and (2) portraying Sandusky as a caring and generous mentor to children who were ignored by everyone else.
To advance these strategies, Amendola will aggressively challenge the eight men who say Sandusky abused them. On cross-examination, Amendola will question their motives for coming forward years after the alleged abuse occurred. He will also challenge them as to why none of the victims apparently kept any physical evidence that implicates Sandusky. Amendola will probably try to uncover if any of the accusers plan to seek financial compensation for telling their accounts, such as to book publishers or film rights. While Amendola has to avoid seeming like a bully, he has a professional obligation to challenge those who have accused his client. That is true even if it means Amendola raises awkward, personal questions about interactions between Sandusky and his accusers.
Keep in mind, even if seven of the eight accusers are telling the truth, the jury's confidence in the government's case could collapse if Amendola shows that one of the accusers is lying. Therein lies one drawback to the government using numerous accusers: All it takes is one false accuser to prevent the honest accusers from obtaining justice.
In that same vein, Amendola will scrutinize the alleged victims' recollections and highlight any inconsistencies between their testimony in court and prior statements on record. Prosecutors have already had to acknowledge one mis-recollection: they recently moved the date of the alleged shower incident involving Victim 2 (which former graduate assistant Mike McQueary claims he witnessed) a staggering 13 months, from March 2002 to February 2001. Amendola will invite jurors to question why they should be so sure of Sandusky's guilt when the case against him can't get the date right by years, let alone days or weeks.
In pretrial motions and statements to the media, Amendola has illuminated other weaknesses in the government's case. For instance, while the government identifies 10 victims, two of them remain unknown. Victim 2 and Victim 8, whom a Penn State janitor claims he saw receive oral sex from Sandusky in 2000, have never been found. Amendola has argued that it is unfair to accuse his client of committing criminal acts when the accusers cannot be questioned and investigated. If Sandusky is convicted, expect Amendola to argue on appeal that his client did not receive a fair trial.
Prosecutors never regarded Paterno's testimony as essential to securing a conviction. Sandusky's alleged victims remain the strongest source of implicating evidence. Still, Paterno would have been an important witness. He worked with Sandusky for 32 years and everything he knew is gone forever. In addition, any discrepancies between what Paterno may have testified during a trial and Sandusky's sworn statements -- thus suggesting that someone is lying -- are lost to prosecutors.
There is no indication that any party sought a pre-litigation deposition of Paterno. This type of deposition would have required a judge's approval and would have been sought by an interested party -- such as one of Sandusky's alleged victims -- on grounds that (1) Paterno possessed key knowledge relevant to a future trial; and (2) Paterno was poised to die or become incapacitated, which would have destroyed the knowledge. Paterno's attorneys would have fought pre-litigation deposition. They would have also characterized Paterno's knowledge as inessential, particularly given that he already testified before a grand jury.
In a limited way, Paterno's knowledge could still be brought into the trial. Generally, statements made by Paterno to other persons now constitute inadmissible hearsay, since he cannot testify in court as to their truthfulness. Paterno's grand jury testimony, however, would "survive" his death and be useable in the trial if Judge Cleland was satisfied with its trustworthiness (Amendola would argue against admission of Paterno's testimony because Amendola was not able to cross-examine Paterno). Prosecutors, moreover, could try to introduce statements made by Paterno to other persons that constituted admissions of guilt or "declarations against his interest." Such declarations refer to statements that would have incriminated or exposed Paterno to civil liability. They are admissible on the theory that Paterno would not have made them unless they were true. In response, Amendola would likely characterize Paterno's statements as irrelevant or as more prejudicial to Sandusky's interests than probative to the case.
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.