Analysis: Waiving hearing was Sandusky's best option: experts

Reuters News
Posted: Dec 13, 2011 5:58 PM
Analysis: Waiving hearing was Sandusky's best option: experts

By Andrew Longstreth

NEW YORK (Reuters) - When Jerry Sandusky waived his right to confront his accusers at a preliminary hearing on Tuesday, the former Penn State football coach passed up a potentially valuable opportunity to bolster his defense.

But strategically, it may have been his best option, according to legal experts.

The announcement of the waiver was made before a packed courtroom in Bellefonte, Pennsylvania just before the hearing was to begin. Some of Sandusky's accusers were expected to testify.

In Pennsylvania, preliminary hearings are generally offered to defendants arrested on criminal charges. In some cases, as in the Sandusky matter, it comes after a grand jury has issued its report on evidence gathered by the government. The hearings give a judge the chance to evaluate the evidence. They also provide the defense an opportunity a look at the government's case and question its witnesses.

At both the grand jury and the preliminary hearing stages, the questions tend to be the same: was a crime committed and was the defendant probably involved?

In Sandusky's case, the questions turn on whether or not the former coach molested 10 boys over more than a decade. By waiving his right to a preliminary hearing, Sandusky declined to challenge whether the government had enough evidence to proceed to trial.

Though Sandusky told reporters after the hearing that he and his lawyers intend "to stay the course, to fight four quarters," his actions contradicted that statement, said Steven Fairlie, a criminal defense attorney based in North Wales, Pennsylvania who is not involved in the case. Sandusky gave up a chance to cross-examine his accusers, said Fairlie. In essence, Sandusky "skipped a quarter," said Fairlie.

There are several advantages to participating in a preliminary hearing for defendants, according to legal experts. Defendants can assess the witnesses' credibility and their ability to hold up to cross-examination. The hearings can also create an opportunity to exploit inconsistencies with what witnesses said before the grand jury, said Lisa Friel, former chief off the Manhattan District Attorney's Sex Crimes Prosecution Unit.

"Given that no human being ever related an event that happens to them the same way every time they say it, just by making them say it again and again…exploits the possibility of inconsistencies at trial," said Friel.

But dispensing with the hearing may have been the best option, experts said. Sandusky's public image, which has already suffered from the charges, could have taken another hit if alleged victims had told emotional stories.

While no television broadcasts or photos were to be allowed in the courtroom, media would have reported the stories extensively.

"I think they weighed those two things and decided that the advantage they might have gotten out of going forward with a hearing was outweighed by how bad they were going to look in the media," said Friel.

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Since many sexual abuse cases do not involve physical evidence, they often come down to credibility contests. But under Pennsylvania law, judges are not allowed to consider a witness's credibility in deciding whether to allow a case to move forward at the preliminary hearing stage.

"Given that there are so many victims, they didn't have a chance of prevailing on the hearing or perhaps intimidating the witnesses into not going forward by insisting on the hearing," said Friel.

When defendants waive their right to a preliminary hearing, it can signal that they are poised to engage in plea negotiations. A government prosecutor denied that those kinds of talks have taken place. But Jeff Lindy, a criminal defense attorney in Philadelphia, said that the decision to waive the hearing could come into play later.

"If there have been conversations in the back room (by prosecutors who say) 'hey look if you waive and do us the courtesy and not force us to put these kids on the witness stand, we will favorably consider it if we engage in plea negotiations down the road," said Lindy.

(Reporting by Andrew Longstreth; Editing by Greg McCune)