Monday, December 19, 2011

Cue Euphemism: Sandusky’s Legal Team Has Engaged In A Series of Tactical Errors

Jerry Sandusky’s legal team has committed a series of tactical errors. That’s putting it lightly. What we have seen boggles the mind.

Here’s some of what has come out of Sandusky’s legal camp:

Bob Costas Interview

For Sandusky, this interview was an absolute horror show. In it, he admitted to showering naked with children. When asked if he was sexually attracted to boys, he was silent for 17 seconds, then proceeded to provide an evasive answer saying he enjoyed their company. A light (albeit dim) may have gone on in Sandusky’s head while answering that question, and he concluded his answer by stating that he was not attracted to children.

That interview will be featured at the criminal trial and at every single civil trial. It’s a pretty damning interview and is very prejudicial to his case.

Common sense would dictate that this is not the type of case where such an interview is appropriate, nor would it sway public sentiment (which apparently was the goal).

Not sure why his lawyers ever let him do the interview.

Language, Language, Language

Some of the things Sandusky’s lawyer, Joe Amendola, has said, makes me shake my head.

Huh?: Part 1

In defending his client, he’s directed people to telephone 1-800-reality (which by the way resolves to a telephone sex service for gay men).

Huh?: Part 2

He attacked the victims, saying their motivation was financial:

"What greater motivation could there be than money? I've seen money break up families. ... So what greater motivation could there be than the financial gain that could come out of this by saying, 'I'm a victim?'"

Huh?: Part 3

On his involvement in this case, he said “I don't want to be here. I have a very active practice in a small county.”

Huh?: Part 4

On displays of affection, "I grew up in an Italian family where we all hugged and kissed everybody. Grandparents patted our butts. It wasn't about sex."

These statements are profoundly inappropriate and disappointing. Even if you are a defence lawyer, there is still a certain level of decorum, respect and class you need to show. Very little, if anything can be gained by making these statements.

Don’t get me started on Sandusky saying he will fight “fight for four quarters”. A football analogy is completely inappropriate.

Guilty Plea

Early on, Amendola said that he would consider speaking to his client about a guilty plea if more charges materialized.

"That could happen if more allegations come forth and Jerry gets to the point where he realized fighting against more than the original allegations might be a real uphill battle.”

Afterwards, presumably figuring out his major gaffe, he said that a guilty plea was never being considered. He added that the topic of a guilty plea came up as a “what-if” question about potential additional charges being filed.

This is a very tough one to understand. In a case like this, under no circumstances should a lawyer suggest his client is open to pleading guilty. Period.

Waiving Preliminary Hearing

This one left me a bit on the speechless side.

At the preliminary hearing, the prosecution (government) has to show probable cause for the case to proceed to trial. In this case, they would have shown it. No question about that.

The hearing would have been invaluable for Sandusky’s defence team. The victims would have gone on the record and testified. That would have allowed the defence team to gain a better appreciation of the case against Sandusky.

As well, and very important, at trial Sandusky’s lawyers could then cross examine the victims, and relying on the earlier testimony from the preliminary hearing, look to catch them in contradictions, inconsistent statements or even lies.

Don’t forget, telling the same story twice is tough – even when you are telling the truth. It gets more difficult when the details are embarrassing and painful. It gets even more difficult if you are telling a story that occurred years ago.

Amendola perhaps wanted to avoid a media circus. However, no excuse - this was a massive error.

New Defence: Teaching Hygiene

Sandusky’s new lawyer, Karl Rominger, has said that when Sandusky was naked in the showers with boys, he was teaching them hygiene. The reasoning is that these kids are from disadvantaged or dysfunctional backgrounds and don’t know how to clean themselves.

Here’s Rominger’s statement:

"Some of these kids don't have basic hygiene skills. Teaching a person to shower at the age of 12 or 14 sounds strange to some people, but people who work with troubled youth will tell you there are a lot of juvenile delinquents and people who are dependent who have to be taught basic life skills, like how to put soap on their body."

This defence is not only intellectually offensive, but it also reminds us that Sandusky has showered naked with boys. There is no value that can be derived from this statement.

Tipping Their Hand: Defence Strategy

Amendola has attacked McQueary’s credibility. There is also the hygiene defence. Amdendola should not be revealing his strategy. The prosecution now has some confirmation of Amendola’s strategy and can take a closer look at those parts of the case.

Overall, it has been one miscue after another. The evidence against Sandusky may well be overwhelming. However, that should not preclude a carefully planned defence.

If you are wondering whether Sandusky could have a conviction overturned on appeal on the basis that his lawyers fell short – the answer is highly unlikely. A judge would need to find that the outcome would be different if Sandusky had better lawyers. Also relevant is that Sandusky would be seen as a sophisticated defendant that could make his own decisions. Finally, his lawyers may still do an acceptable job at trial – which is what matters.

1 comment:

Geoff Rosenthal said...

It's almost like they're setting up for an inadequate defense appeal. Mind-blowing.