Posted: Tuesday October 9, 2012 1:18PM ; Updated: Wednesday October 10, 2012 3:01PM
Michael McCann
Michael McCann>SPORTS LAW

Key questions following Jerry Sandusky's 30-60 year sentence

Story Highlights

Jerry Sandusky's sentence is surprisingly short compared to comparable cases

Sandusky's appeal odds are poor; he'll likely avoid a minimum-security prison

Penn State still faces lawsuits and possible fallout from violating the Clery Act

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Sandusky scandal will never rest
Source:SI
Andy Staples explains why the Jerry Sandusky scandal will never achieve closure despite sentencing.
Jerry Sandusky was sentenced Tuesday to 30-60 years in prison following his conviction on 45 counts of child abuse.
Jerry Sandusky was sentenced Tuesday to 30-60 years in prison following his conviction on 45 counts of child abuse.
AP

Judge John Cleland has sentenced former Penn State defensive coordinator Jerry Sandusky to a minimum of 30 years and a maximum of 60 years in prison. Sandusky, who in June was convicted on 45 counts of child abuse, will not be eligible for parole. Here's a look at the key questions following Tuesday's sentencing and the implications for Penn State moving forward.

1. Was the sentence surprising?

The sentence was less than expected. Cleland could have imposed a minimum sentence ranging from approximately 10-220 years in prison. Prior to the sentencing, one of Sandusky's attorneys, Karl Rominger, stated that among realistic outcomes the best-case scenario for Sandusky would be a 30-year minimum sentence. That's what Sandusky received.

While individual cases and state laws vary, Sandusky's sentence is somewhat short compared to sentences handed to other rapists. An Alabama judge, for example, recently sentenced 25-year-old Mark Anthony Beecham to 634 years in prison for kidnapping, raping and sodomizing. Although prison sentences in excess of plausible life expectancy may seem unnecessary, they serve the important function of recognizing the degree of harm caused.

Still, given Sandusky's age of 68, a sentence of at least 30 years in prison is essentially tantamount to a life sentence. Only a tiny percent of the U.S. population lives to 98, and Sandusky would have to do so as a child rapist living in prison conditions. By imposing what likely amounts to a life sentence, Cleland sent a clear message: Sandusky inflicted grotesque crimes on children and caused them irreparable harm, and thus deserves to spend his remaining years behind bars. It's a message to Sandusky and other child predators. It remains to be seen whether Sandusky's victims think the sentence matches the severity of the crimes.

2. What are Sandusky's prospects for appeal?

Sandusky will almost certainly file an appeal through attorney Joe Amendola and argue that he did not receive a fair trial or effective assistance of counsel. The chances of an appeal succeeding are low.

For starters, Sandusky will likely claim that Cleland's decision to allow hearsay evidence in the form of one Penn State janitor testifying about a statement made by another janitor who now suffers from dementia constituted reversible judge error. This argument will probably fail, since the statement appeared to meet the "excited utterance" exception to hearsay, which says that statements made in response to unexpected and surprising events are likely true. The janitor who now suffers from dementia had just witnessed Sandusky rape a boy.

ROSENBERG: Sandusky sentenced, but Penn State still on trial

Sandusky is also poised to argue that he did not receive enough time to wage an effective defense. Amendola made several requests early on for "continuances" to better review the government's evidence, but they were denied. It's true that the prosecution of Sandusky moved relatively fast, though probably not to such an extent that Sandusky will be awarded a new trial. The fact remains that the evidence against Sandusky was overwhelming and came from multiple persons who had no apparent reason to lie.

Lastly, Sandusky might argue that the counsel he received from Amendola was so poor that it constituted ineffective assistance of counsel. This argument, which obviously would not be raised by Amendola, is sure to fail. Sandusky, who was a professor emeritus at Penn State, is undoubtedly a sophisticated defendant who could have sought legal counsel elsewhere. Even if Sandusky could prove Amendola was incompetent, he would still have to show that it made a difference in the trial's outcome.

3. What kind of prison will Sandusky be housed in?

For the next few weeks, Sandusky will be housed at Camp Hill state prison, where his physical and mental health will be evaluated. The Pennsylvania Department of Corrections will then decide where Sandusky is incarcerated and the circumstances of his incarceration.

Amendola contends his client should be assigned to a minimum-security prison. Don't expect that. Although Sandusky's advanced age suggests he will necessitate health care and not pose a threat to other prisoners, he is still a convicted child rapist who perpetuated violent crimes over many years. And he still refuses to admit his wrongdoing, let alone ask for forgiveness. Along those lines, placement in a minimum-security Pennsylvania prison such as Laurel Highlands (where as many as 20 percent of the inmates are elderly or suffering from medical disability) could appear inappropriately generous. Expect placement in a medium- or maximum-security facility instead.

Wherever Sandusky is assigned, he will likely request special protection, including supervised and controlled interaction with other prisoners. Unfortunately for Sandusky, Pennsylvania does not separate sex crime offenders from the general prison population. It is possible, however, that prison officials could take his celebrity into account if it's determined he is a more likely target because of his notoriety. Regardless, Sandusky will have to interact with other prisoners.

While in prison, Sandusky will be able to purchase a television and watch a limited selection of programming, including college football. He'll also be able to work, although he is barred under Pennsylvania law from profiting from his crimes. As a result, he cannot profit from any book he writes on the trial or accept paid television interviews.

4. Were the Sandusky comments aired Monday night on Penn State radio surprising?

No. To be sure, Sandusky maintaining his innocence and blaming his victims in the face of overwhelming evidence seems offensive and absurd. But there are at least three possible explanations.

First, Sandusky may genuinely believe he is innocent. He would not be the first guilty defendant to "recall" the past differently than everyone else.

Second, Sandusky may wish to give his family and friends reason to believe him. If he instead admitted to being a serial rapist, his family and friends would probably be less inclined to visit him in prison. Prisoners often say that visits from loved ones keep them going.

Third, Sandusky may have a strategic purpose: self-preservation. He knows other inmates often target prisoners who committed sex crimes against children. Sandusky may surmise that if he maintains his innocence and claims he was victimized by some combination of conspiracy and scapegoating, other prisoners may be less inclined to view him as a child rapist and thus less inclined to hurt him.

5. How will Penn State defend against lawsuits filed by Sandusky's victims?

Penn State will be dealing with the legal fallout of Sandusky's crimes for years. Most immediately, it faces lawsuits brought, or soon to be brought, by Sandusky's victims. "Victim 1" has already sued the university, claiming Penn State knew Sandusky was a "dangerous, sociopathic sexual predator" and failed to prevent Sandusky from harming him. Additional victims' lawsuits are expected. The number of persons victimized by Sandusky could be several dozen, if not more, and many of them could sue Penn State.

The university has a difficult choice regarding the victims' lawsuits. On the one hand, there's a decent chance it would prevail over the claims should they go to trial. Consider Penn State's defense: The university would likely argue some of these claims are barred by the statute of limitations, which in Pennsylvania require victims of child abuse to sue by the time they are 30. The university could also cite case law from Pennsylvania suggesting that teenage victims (as opposed to children victims) who fell prey to a sexual predator because of verbal, rather than physical, threats must file claims well before age 30. Sandusky told Victim 10 he would be excommunicated from his family if he told anyone about the rape.

Penn State could also cite the doctrine of sovereign immunity, which generally holds that citizens cannot sue governments and their agencies. The doctrine has been extended to publicly funded state colleges. Penn State, however, has taken steps to distinguish itself as a "state-related" institution as opposed to a "state institution," and it claims some autonomy and independence from the state. The further the university is from being considered a traditional "state college," the less it can rely on sovereign immunity.

Even if the victims' claims are not barred by statute of limitations or sovereign immunity, Penn State could insist that it satisfied any legal duties owed to Sandusky's victims. Granted, the Freeh Report paints Penn State as irresponsible and incompetent in its employment of Sandusky. But the report was an investigation and critique, not an application of law to facts. The report also does not conclusively say Penn State owes money to Sandusky's victims. A trial of Penn State's actions would also be different from the Freeh investigation, which interviewed some but not all witnesses, examined evidence without worrying about its admissibility in court, lacked subpoena power and conducted interviews of persons who were not under oath.

On the other hand, the prospect of years of litigation to Penn State would undermine the tone the university has set in the wake of Sandusky's conviction: to apologize and move on. The university, for instance, immediately reached out to victims in the wake of Sandusky's verdict. It also, through the actions of Penn State president Rodney Erickson, quickly accepted NCAA sanctions. Litigation against Sandusky's victims would prove controversial and might tarnish Penn State's reputation well beyond the football program, including in fund raising and admissions.

Litigating would also pose the risk of the university losing in court and being forced to pay millions of dollars in damages. Penn State may also not be able to rely on its insurance company (Pennsylvania Manufacturer's Association) to pay litigation damages, as the two are already in court, fighting over whether insurance covers civil liability related to Sandusky.

A plausible way for Penn State to address victims' lawsuits would be to seek a global settlement, whereby those who show sufficient evidence that they were victimized by Sandusky either at Penn State or through his association with Penn State can draw on a university fund. The upside of such a fund for victims would be avoiding going to trial, which would produce a public record; avoiding any appeals process; and receiving compensation and closure. The upside to Penn State would be avoiding litigation and the public spectacle of opposing Sandusky's victims in court. In terms of the amount victims would be paid through a fund, one indicator may be the average of settlements between the Catholic Church and victims of sex abuse. According to BishopAccountability.org, that number is $268,466.

6. How will Penn State contend with Clery Act violations?

The Clery Act, a federal law mandating comprehensive reporting and notice of on-campus crimes, is an underappreciated problem for Penn State. The Freeh Report makes clear that the university failed to follow the law. The Department of Education is currently evaluating Penn State's responsibility and will likely announce fines in the millions of dollars.

The penalty, however, could be much worse: Clery Act sanctions can include suspension of students receiving federal financial aid. If future Penn State students are barred from receiving such aid, the university would have a much harder time recruiting students. Given Penn State's acceptance of responsibility, it is unlikely the Department of Education would impose such a devastating penalty.

7. How will Penn State address Mike McQueary's lawsuit?

Former Penn state assistant coach Mike McQueary, who witnessed Sandusky rape Victim 2 and then later reported what he saw to Joe Paterno and a grand jury, recently sued Penn State in a whistleblower and defamation suit. McQueary was placed on paid administrative leave in November 2011 and was not retained by new coach Bill O'Brien for the 2012 season. McQueary claims Penn State caused him $4 million in damages through several types of harm. Among them: The university made him a scapegoat while protecting athletic director Tim Curley and vice president Gary Schultz (both of whom will go on trial in January); it gave him no credible opportunity to interview for a job with O'Brien; and it defamed his reputation. McQueary claims $4 million in damages.

Penn State is poised to prevail over these claims. Even in normal circumstances, a new head coach usually brings in new assistant coaches who share his coaching philosophy and who are loyal. McQueary, like most "holdovers," was unlikely to be retained by O'Brien regardless of his connection to Sandusky or any stigma suffered from an administrative leave. Indeed, O'Brien only retained two coaches from Paterno's staff: Larry Johnson and Ron Vanderlinden. Therefore, the university probably can show it had a lawful reason to let McQueary go. If so, McQueary will have difficulty prevailing on the whistleblower claim.

The defamation claim, meanwhile, is based on statements made by then-Penn State president Graham Spanier, who endorsed the accounts of Curley and Shultz and thus cast doubt on McQueary's testimony. In response, expect Penn State to contend that the statements never mentioned McQueary and do not rise to defamation. The statements were also made in the context of a legal investigation where facts were still being determined.

Michael McCann is director of the Sports Law Institute director at Vermont Law School, a visiting professor at University of New Hampshire School of Law 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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