Jerry Sandusky trial: What we've learned, what we can expect next
The prosecution presented a compelling and focused case to jurors
Sandusky's defense, on the other hand, was unexpectedly passive
Jury deliberations could be quick; Sandusky will appeal if found guilty
The trial of former Penn State defensive coordinator Jerry Sandusky could end this week, with closing arguments scheduled for Thursday and jury deliberations -- which might take hours rather than days -- to follow. Sandusky faces 51 felony and misdemeanor counts for molesting and raping young boys. If convicted on all counts, he would face more than 500 years in prison. Even if convicted on only a handful of counts, the 68-year-old would still be poised to receive a de facto life sentence.
As the proceedings wrap, here is a look at what we've learned so far, and what we can expect moving forward.
Going into the trial, there was reason to believe the prosecution might struggle with certain aspects of the case.
For one, some of the accusations were undeveloped, most glaringly the missing identities of Victims 2 and 8. In the case of Victim 2, whom former graduate assistant Mike McQueary says was abused in a Penn State shower, prosecutors also had to embarrassingly revise the date of the alleged incident by 13 months. With such undeveloped and changing allegations, jurors could have suffered doubts.
Prosecutors were also hampered by an inability to call several key witnesses to the stand. Penn State athletic director Tim Curley and former vice president Gary Schultz might have advanced the prosecution's case, since both worked with Sandusky. Neither was willing to testify, however, not wanting to reveal information that could be used against them in their own criminal trials.
Despite these challenges, the prosecution's case emerged as persuasive, organized and concise. Most importantly, all eight men who said that they were raped or molested by Sandusky provided believable testimony. Give credit to the prosecutors: They prepared the eight accusers to clearly explain their claims and to do so using straightforward, non-inflammatory language. The witnesses also refrained from discussing irrelevant issues (which may have risked losing jurors' attention), while highlighting common threads in how Sandusky mentored and allegedly hurt them.
The eight men also provided damning anecdotes for jurors to easily recall while deliberating. One said Sandusky called himself the "tickle monster;" another opined that he is repulsed by chest hair because of his alleged sexual encounters with Sandusky. The eight men also capably responded to cross-examination doubts about their motives and memory, leaving Sandusky's lawyers without convincing ways to discredit their accounts. Put simply, the prosecution's strategy worked.
Prosecutors also succeeded in having jurors hear from Sandusky, in his own words and voice, about the allegations. While the Fifth Amendment to the U.S. Constitution guarantees that criminal defendants do not have to testify in their own defense, the guarantee does not extend to those who answer questions from Bob Costas on NBC's Rock Center. Jurors thus heard Sandusky awkwardly respond to Costas' questions last November. Since Sandusky declined to testify in his own defense this week, he missed an opportunity to provide jurors with revised responses.
Although Joe Amendola has built a reputation as an aggressive defender, the defense he and co-counsel Karl Rominger staged often seemed mild, even unwilling. The defense also expended much of its time on arguably peripheral issues instead of core allegations.
The lack of punch in the defense was evident throughout the cross-examination of the eight accusers. While Amendola tried to paint them as implicating Sandusky to facilitate filing a massive civil lawsuit against Penn State, he offered few specific reasons for jurors to question the detail and narrative provided in the accusers' testimony. Keep in mind, the case against Sandusky probably begins and ends with his accusers; to let them implicate Sandusky without much resistance was a tremendous concession to prosecutors.
The defense also missed a golden opportunity to undermine the testimony of at least one government witnesses. John McQueary testified in detail about conversations he had with Schultz more than a decade ago, and yet couldn't remember testifying in a preliminary hearing last December. Instead of pouncing on the inconsistency -- and the inference that McQueary's recollection of events from a decade earlier could have been "improved" by prosecutors' coaching -- the defense quickly moved on to another topic. While John McQueary was obviously not the trial's most important witness, having jurors question the prosecutors' decision to use him could have planted seeds of doubt.
In fairness to the defense, it gained some ground late in the trial through the testimony of Sandusky's wife, Dottie. While she did not address specific allegations from most of the alleged victims, she did try to discredit the account of Victim 4, and she implied Victims 1 and 9 may have reasons to lie or exaggerate. The defense also wisely called John Dranov, a friend of Mike McQueary, to the stand. Dranov effectively raised questions about what McQueary actually saw in the shower. Dranov testified that McQueary only spoke of hearing "sexual sounds," while McQueary testified that he saw Sandusky sodomizing Victim 2. Since Victim 2 has never been identified, Amendola and Rominger may have convinced jurors that they cannot believe, beyond a reasonable doubt, in the charges relating to Victim 2. Still, the other victims' stories emerged largely intact.
The defense also struggled to frame Sandusky's interactions with his accusers as indicative of normal, "regular guy" behavior and, paradoxically, as resulting from "histrionic personality disorder." For instance, several coaches testified that it is common for adult male coaches to shower with boys. Even if that is true, it does nothing to counter the specific charges. Sandusky is not on trial for showering with boys; he's on trial for raping them.
Dr. Elliot Atkins' testimony was similarly ineffectual and also at odds with the depiction of Sandusky as an ordinary man. The defense's psychologist told jurors that he diagnosed Sandusky with histrionic personality disorder, which entails excessively emotional and attention-seeking behavior. Although Amendola hopes jurors link the disorder to Sandusky writing his accusers affectionate letters and being a "big overgrown kid," the link was never made clear. Jurors may also wonder how Sandusky could have enjoyed a successful and 32-year college coaching career, and how he still enjoys a purportedly loving 46-year marriage, without his disorder noticeably interfering or even requiring medicine.
The defense's most pivotal decision was for Sandusky to not testify, as is his right. Criminal defense attorneys usually discourage their clients from testifying. Even if clients are truly not guilty, they may seem nervous or "look guilty" while testifying, especially when answering questions from seasoned prosecutors. Consider defendants in recent high-profile criminal cases: Roger Clemens, Barry Bonds, John Edwards and Casey Anthony all declined to testify and all (more or less) won. Unlike the defenses of those defendants, however, Sandusky's defense has mostly failed to undermine the core allegations against him, meaning the potential risk to him by testifying was probably low. Also, had he testified, he could have tried to advance a narrative that he's more weird than criminal.
After closing arguments, Judge John Cleland will instruct the jury on how to consider the 51 counts. Both in speech and in writing he will provide instructions on how the 12 jurors should consider the evidence and apply the "beyond a reasonable doubt" standard.
Jurors will be given as much time as they need to vote on the 51 counts, and Cleland will sequester them, meaning they will be barred from non-emergency contact with anyone other than fellow jurors, court officials or family. Fifty-one counts is a large number for jurors to discuss, but if they agree that Sandusky is guilty or not guilty, they might decide within hours.
A conviction on each count requires a unanimous verdict, meaning 12-0. A non-unanimous vote on any of the counts results in a mistrial on that count. The government can retry Sandusky on any count for which there is a mistrial, and would be poised to do so if he is not convicted on other counts and if the vote is 11-1 or 10-2. The government cannot retry Sandusky on any count where that count's vote is 12-0 in favor of not guilty.
If Sandusky is convicted, his lawyers will likely make a post-verdict motion to Cleland to overrule the jury. This type of motion fails almost every time, since it requires the judge to conclude the 12 jurors were unreasonable. Should such a motion arise, expect Cleland to deny it.
Sandusky's lawyers would then ask Cleland to release him on bail while he awaits sentencing, which would likely be weeks later. Judge Cleland would have discretion to release Sandusky and if he does, he would probably impose strict conditions, including the use of an electronic monitor and the prohibition of any travel. Sandusky, who has been free on $250,000 bond, would likely have to post bond again. However, given the serious nature of the charges and the fact that Sandusky may be viewed as a flight risk and threat to public safety, Cleland seems more likely to immediately send Sandusky to jail while he awaits prison sentencing. Any time spent in jail would count as time served toward Sandusky's sentence.
Sandusky could and likely would appeal any conviction. He would have to demonstrate that Cleland made an error, and that the error was so meaningful that it led to a wrongful conviction.
One possible grounds for an appeal would be Cleland's decision to admit hearsay evidence. Specifically, Cleland allowed one Penn State janitor, Ronald Petroksy, to testify to what he was told by another Penn State janitor, Jim Calhoun, who is now incapacitated by dementia. Petroksy said Calhoun told him that he had just witnessed Sandusky perform oral sex on a young boy. Normally such evidence would be inadmissible hearsay because Sandusky's lawyers were denied an opportunity to cross-examine the person who made the incriminating statement. However, an exception to hearsay is for "excited utterances," which are statements made in response to unexpected and shocking events. These statements are normally admissible because they are seen as probably true given the circumstances in which they were made.
Sandusky might also appeal based on ineffective assistance of counsel. Amendola's legal strategy has attracted substantial criticism and a conviction would only amplify those critiques. Unfortunately for Sandusky, an appeal based on ineffective assistance of counsel would likely fail. First, Sandusky would have to show that the outcome would have been different had he received effective assistance of counsel. Given the apparent strength of the prosecution's case, such an argument would be challenging. Second, Sandusky is a sophisticated defendant (defensive coordinator and professor emeritus at Penn State; founder of The Second Mile) with the financial wherewithal to have hired a different lawyer, or to have replaced Amendola sometime before trial. Third, Amendola's advice that Sandusky speak with Bob Costas occurred outside of the courtroom and though the discussion was later played to jurors, the move seemed as much motivated by media strategy as legal strategy.
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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