Legal experts question Sandusky defense decision
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Pittsburgh defense attorneys questioned the decision by Jerry Sandusky's lawyer to waive his right to a preliminary hearing on Tuesday while another legal expert called it a sure sign that plea bargain talks have begun.
The surprising decision by Mr. Sandusky's lawyer, Joseph Amendola, to let the case go to trial without a preliminary hearing means he won't have any opportunity to question his client's accusers before then, said Wes Oliver, professor at Widener University School of Law and an expert in criminal law.
That would be too much for the defense to give away without getting something in return, Mr. Oliver said. "The only thing that makes sense in this case is that there is a plea bargain negotiation well under way. [Mr. Amendola] must've had some sort of assurance from the prosecution that he would get something meaningful in return."
Mr. Amendola emphatically ruled out a plea bargain in remarks after Tuesday's hearing in Centre County Common Pleas Court in Bellefonte.
Veteran Pittsburgh defense lawyers Charles J. Porter and G. William Bills said they would not have waived the hearing and would have used it to question witnesses under oath and possibly reveal inconsistencies in their accounts. While defense lawyers typically cannot call their own witnesses at preliminary hearings, they are permitted to cross-examine anyone the prosecution puts on the stand.
"You are giving up the ability to pin down a version of facts from the witnesses," Mr. Porter said. "If I was thinking of fighting tooth and nail to the end, I would want to have the preliminary hearing."
Now, Mr. Amendola's only opportunity to cross-examine the witnesses will be at trial.
"What is the strategy? I don't know," Mr. Bills said. "A defense attorney can get a sense and feeling for the case by doing the preliminary hearing. I feel handicapped when I don't do the prelim.
"Although this would have been ugly and the witnesses would have testified, you would have been able to evaluate their credibility," he said.
Another Pittsburgh defense attorney, Joseph Paletta, said waiving the hearing "was certainly a reasonable decision under the circumstances."
One reason lawyers will do that is if an accuser doesn't appear or isn't available for the trial, the prosecutor could introduce the transcript of the witness's preliminary hearing testimony "to remedy that unavailability," Mr. Paletta said. Without it, the witness's no-show creates an "automatic win" for the defense at trial, he said.
Another reason to waive the hearing is that the victims' testimony was likely to be ugly and traumatic "with the likelihood that the case would be held for court anyway," he said.
Experts agreed there was virtually no chance Mr. Sandusky would have prevailed at the preliminary hearing, where the burden on prosecutors is much lower than the "guilt beyond a reasonable doubt" threshold of a trial.
But the value of the hearing to the defense would have been the opportunity to question witnesses about details of their allegations and uncover discrepancies from their earlier statements. "The prior inconsistency is very powerful at trial," he said.
Mr. Oliver said the wide range of possible outcomes in the case -- ranging from a sentence that would keep Mr. Sandusky in prison for the rest of his life to acquittal on all or some of the 52 charges that would result in little or no incarceration -- creates an incentive for both sides to reach a plea agreement.
"I will be very surprised if this goes to trial," he said.
He quickly added that the case already has been full of surprises from Mr. Amendola, starting with his decision to let Mr. Sandusky do interviews, a tactic that also drew scorn from Mr. Bills.
He called Mr. Amendola's handling of the case "as bizarre as the circumstances surrounding Area 51," the Nevada military base often linked to UFO sightings and other paranormal activity.
And that was before Mr. Amendola caused yet another stir with his comment to anyone who believes the account given by Mike McQueary, the Penn State assistant who said he saw Mr. Sandusky assault a young boy in a locker room shower: "I suggest you dial 1-800-REALITY."
The sports website deadspin.com did just that, and discovered it's a hotline for XXX-rated gay phone sex.
First Published December 14, 2011 12:00 am