Opinion: Jerry Sandusky, Public Opinion, and Evidentiary Strategy

By Marcus Moretti, From Volume 2, Issue 2

What do you say?

“Mr. Sandusky, there’s a 40-count indictment. The grand jury report contains specific detail. There are multiple ac- cusers, multiple eyewitnesses to various aspects of the abuse. A reasonable person says where there’s this much smoke, there must be plenty of fire. What do you say?”
This was Bob Costas’ opening question to Jerry Sandusky in their November 14 interview, in which Sandusky spoke out for the first time since his arrest 10 days earlier.1 Sandusky, who had been a defensive coordinator for Pennsylvania State University for several decades, had been charged with 40 counts related to sexual misconduct with young boys. The charges, along with the supposed culture of silence that allowed them to go unreported for years, brewed a storm of media cover in November and led to the firing of Penn State’s beloved and now deceased head football coach, Joe Paterno.
Sandusky, who was speaking over the phone, answered, “I say that I am innocent of those charges.” “Innocent? Completely innocent and falsely accused in ev- ery respect?” Costas asked.
“Well I could say that, you know, I have done some of those things. I have horsed around with kids. I have showered after workouts. I have hugged them and I have touched their legs, without intent of sexual con-
duct. But—so if you look at it that way—there are things that wouldn’t—you know, would be accurate.”2

What was he thinking?
This was the first in a series of sullen circumlocutions and stunning admissions by Sandusky. He stutteringly recalled the incident, relayed to higher-ups by graduate assistant Mike McQueary in 2002, in which he was allegedly caught in a shower with a young boy. His explanation was that he and the boy were “horsing around,” and that they were “possibly like snapping a towel, horseplay.”3

Reporters and lawyers were baffled by Sandusky’s decision—and his lawyer’s decision to give him permission—to be interviewed. A typical headline read, “Jerry Sandusky’s interview confuses, infuriates critics.”4 Jon Stewart, on the The Daily Show the following day, remarked, “I’m no law- yer, but it seems to me when you’re accused of one of the most heinous crimes imaginable, you may not want to liter- ally phone-in your defense on national television.”5
“It’s like in that phone conversation,” he added, “you’re ac- tually fighting the urge to come clean.”6 Although this com- ment sounds hyperbolic, it remains the most accurate char- acterization of Sandusky’s tone and pitch in the interview that this writer has heard. His answers sounded unrehearsed and pointless, suggesting that he and his lawyer, Joseph Amendola, had not prepared answers to Costas’ predictable questions. What were they thinking?
The general rule is that defense attorneys keep their clients from answering questions from the media. After the Duke lacrosse team allegations came out, for example, the defense attorneys representing the charged players did not allow them to do interviews.7 Instead, they released public state- ments on behalf of the players asserting their innocence, and no follow-up questions were permitted. Eventually, the players were all exonerated and the critical commentators shamed. Interviews, in such cases, are risky and unnecessary. The defense wants to focus on trial preparation.
Amendola’s decision to allow Sandusky to be interviewed is thus exceptional, but by no means is such a decision un- precedented. In some cases, defense attorneys have allowed their clients to be interviewed by reporters, especially when seedy allegations make their
cases popular. There are a few possible reasons to do so.
Defendant with a Human Face
For one thing, a public interview can humanize a defendant. When a criminal defendant is the object of widespread me- dia attention, he is often broadcast in images of implicative scenes. A particularly forceful example of this can be seen in the photos of the “perp walk” inflicted on Dominique Strauss-Kahn last summer. (The charges against Strauss- Kahn in that case were dropped, despite strong public criti- cism of him.)
Sandusky himself was seen all over the news in handcuffs, surrounded by police, and sometimes seated in the back of a police car. But even more demonizing were the lurid descrip- tions of his alleged sexual misconduct that gave the story its sordid appeal. The most oft-reported incident was the one witnessed by Mike McQueary in 2002. Costas mentioned some details of this incident in his interview, including the “rhythmic slap, slap, slapping sounds” coming from the showers.8
Working against this hurricane of negative public opinion, a defense attorney may advise his client to appear on TV – without the handcuffs – to present a heartfelt account of his actions. Perhaps Amendola was thinking something along these lines when he allowed his client to appear on MSN- BC. There were indeed some moments of tenderness in the interview. When asked how he felt about the students and faculty of Penn State, Sandusky said he felt “horrible,” and asked Costas how he would feel if he brought shame upon the community he served for most of his life.9
Dropping the Ball
But if humanizing his client was Amendola’s intention, his project was frustrated by a number of factors that should have been in his control. First, Sandusky did not appear in person. Instead, his phone-quality voice was heard as im- ages of him were displayed on television. Because Sandusky was not present in the studio, the public continued to perceive him at a distance, which did nothing to make him seem closer to the public in the social or moral sense. In fact, it was especially damaging when one of the pictures that gave a face to Sandusky’s voice showed him sitting morosely in the backseat of a police car.10 (This problem was rectified later, when Amendola had Sandusky interviewed on camera for the New York Times; nonetheless, the damage had already been done.)
Second, Sandusky’s proclamation of innocence was both weak and, indeed, counterproductive. In his answers, he
hesitated, slurred words, and started and restarted sentences. He repeated questions, and, as Jon Stewart noted on The Daily Show, “Everyone knows the only time you repeat a question is when you’re guilty.”11 But Sandusky’s account of what happened might have even hurt his case. He admitted to some of the things described in theGrand Jury report, such as showering with boys and “horsing around” with them. “He has placed himself at the scene of the crime,” said Leo Terrell, a Pennsylvania defense attorney, on myFOXLa, a local news channel. “He has done the work for the prosecu- tion.”12

Speech Before Si- lence
Amendola may have also permitted the in- terview because San- dusky will not testify at trial. As such, an interview allowed him to air his side of the story. Defense at- torneys sometimes advise their clients not to testify in trial. Lawyers whose cli- ents are charged in crimes with few wit- nesses might find this option appealing. If the evidence does not come from the witnesses, the law- yer may reason, it certainly should not
come from the client. To prevent self-incrimination, there- fore, the defense attorney orders silence.

Amendola’s strategy, as revealed in part during the Costas’ interview, is to discredit the state’s witnesses.13 He has stated that one of the alleged victims, who is now an adult, has recanted his accusations. Such a strategy requires the de- fendant to remain silent, so that he cannot corroborate or supplement the testimony from the state witness.
Hence the interviews. If Sandusky is going to be silent at trial, his lawyer might want to give his client a chance, before trial, to win back the public. As mentioned, however, Amen- dola and Sandusky did a poor job executing this strategy if this was indeed their intention.
Another Anthony?
In a case last summer that also involved an underage vic- tim, and which was also ardently followed by the American public, a Florida woman named Casey Anthony was on trial for the murder of her two-year-old daughter, Caylee. Anthony received a torrent of negative press, which cited her clubbing habits as evidence of her indifference to her daughter’s death. Anthony’s lawyer, unlike Sandusky’s, barred media access to his client, and negative opinions thrived.14
But the public’s scorn was not of interest to the jury. An- thony was found innocent on all counts except lying to po- lice officers, which carried a minimal sentence relative to the capital sentence sought by the prosecutor. The public was outraged at the verdict. The defense team survived the harsh treatment from reporters by not engaging them.
A significant difference between Anthony’s case and San- dusky’s may partially explain why Amendola permitted a public interview. Jury selection for the Anthony trial began in May 2011, before the story became a national phenom- enon.15 Coverage of the case had been big in Orlando, so jurors were drawn from nearby Pinellas County, and seques- tered immediately after their selection. The jurors may have heard about the allegations, but they were likely not privy to the nationwide contempt for the defendant, whose guilt they were considering.
By contrast, Sandusky’s alleged crimes are known to the vast majority of the American public. Finding jurors ignorant of the Penn State scandal will be difficult. For this reason, Amendola might have wanted to give the potential jury pool Sandusky’s own testimony through channels outside of the courtroom.
Whatever happens in the Sandusky trial, it is clear that the defense has not set itself up well so far. Perhaps the team is planning to have Sandusky plead insanity, and the interviews were actually an ingenious attempt to prepare the groundwork for that defense. Sandusky will likely plead the Fifth Amendment at trial. The de- fense will probably attempt to discredit state witnesses and rely, as Anthony’s lawyers did, on prosecutorial missteps. One thing that Amendola’s public relations strategy has ensured, and left unchanged, is that if Sandusky is declared innocent, we can expect an even larger outcry than the reaction to Anthony’s verdict of innocence.

 

1. “Jerry Sandusky to Bob Costas in exclusive ‘Rock Center’ in- terview: ‘I shouldn’t have showered with those kids,’” MSNBC, last modified November 14, 2011, http://rockcenter.msnbc.msn. com/_news/2011/11/14/8804779-jerry-sandusky-to-bob-cos- tas-in-exclusive-rock-center-interview-i-shouldnt-have-show- ered-with-those-kids.
2. Ibid. 3. Ibid. 4. “Jerry Sandusky’s interview confuses, infuriates critics,” CNN, last modified 15 November 2011, http://news.blogs.cnn. com/2011/11/15/jerry-sanduskys-interview-confuses-infuri- ates-critics/ 5. “Jerry Sandusky phone interview,” The Daily Show with Jon Stewart, last modified November 15, 2011, http://www.thedai- lyshow.com/watch/tue-november-15-2011/jerry-sandusky- phone-interview 6. Ibid. 7. “Duke Rape Suspect Speaks Out,” 60 Minutes, last modified February 11, 2011, http://www.cbsnews.com/ stories/2006/10/11/60minutes/main2082140.shtml 8. “Jerry Sandusky to Bob Costas in exclusive ‘Rock Center’ in- terview: ‘I shouldn’t have showered with those kids,’” MSNBC, last modified November 14, 2011, http://rockcenter.msnbc.msn. com/_news/2011/11/14/8804779-jerry-sandusky-to-bob-cos- tas-in-exclusive-rock-center-interview-i-shouldnt-have-show- ered-with-those-kids. 9. Ibid. 10. Ibid. 11. “Jerry Sandusky phone interview,” The Daily Show with Jon Stewart, last modified November 15, 2011, http://www.thedai- lyshow.com/watch/tue-november-15-2011/jerry-sandusky- phone-interview 12. “Jerry Sandusky TV Interview: Why Did He Do It?” MyFOX- La, last modified November 15, 2011, http://www.myfoxla.com/ dpp/news/jerry-sandusky-tv-interview-why-20111115 13. “Jerry Sandusky to Bob Costas in exclusive ‘Rock Center’ in- terview: ‘I shouldn’t have showered with those kids,’” MSNBC, last modified November 14, 2011, http://rockcenter.msnbc.msn. com/_news/2011/11/14/8804779-jerry-sandusky-to-bob-cos- tas-in-exclusive-rock-center-interview-i-shouldnt-have-show- ered-with-those-kids. 14. Alvarez, Livette, “Judge Moves Jurors, Not Trial, in Murder Case.” New York Times, May 9, 2011, accessed January 28, 2012, http://www.nytimes.com/2011/05/10/us/10anthony.html 15. “Casey Anthony Jury Selection: After a 10 Day Ordeal, The End is in Sight,” Huffington Post, last modified July 19, 2011, http://www.huffingtonpost.com/2011/05/19/casey-anthony-ju- ry-selection_n_864421.html 16. Caitlinator. “State” Flickr Creative Commons. http://www. flickr.com/photos/caitlinator/4006200707/

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