What happens next in the Jerry Sandusky case?
The premiere event will, of course, be sentencing day. A few months from now the former Penn State football coach will stand before Judge John Cleland, who will then impose an eye-popping sentence. Sandusky was found guilty of 45 of the 48 counts lodged against him. It wouldn’t surprise me to see a sentence ranging in the hundred-plus year range. Of course, anything beyond a couple decades is window-dressing. Sandusky is 68, and life expectancy goes down, not up, behind bars.
Before sentencing, Sandusky’s lawyers will file a motion for a new trial or to otherwise set aside the verdict. They will claim that the seven months between arrest and trial did not give them adequate time to prepare for trial. They will also claim that they were caught by surprise when Sandusky’s adoptive son, Matt Sandusky, who was supposed to be a defense witness, changed his mind and told the state that he, too, had been abused by his father. This kept Sandusky himself from testifying. Or so the lawyers say.
This is no reason to set aside the verdict. Although Matt’s decision to turn against Sandusky was no doubt a surprise and was a factor in keeping Sandusky off the witness stand, there is no rule that requires witnesses to remain committed to one side or the other prior to trial.
If there was a trial strategy informing the tactics of Sandusky’s attorneys, Joe Amendola and Karl Rominger, I cannot discern it from afar. When Sandusky wasn’t on national television giving interviews in which he conceded his "love" for children, his lawyers were on the airwaves. Rominger’s comments on ABC News that his client showered with boys because the kids were disadvantaged and needed to be taught how to use soap will go down in history as one of the stupidest things a lawyer ever said about a client. Even now, after trial, the two lawyers cannot shut up.
Once sentence is imposed, Sandusky should have new lawyers. These lawyers will file an appeal in the Pennsylvania state courts. Every defendant convicted of a crime in the United States has a constitutional right to what is known as a direct appeal. The appeal will consist of a painstaking review of the trial transcripts and exhibits to determine whether there were legal errors committed of sufficient magnitude to warrant a conclusion that Sandusky was deprived of a fair trial. During this period, Sandusky will almost certainly be denied an appellate bond and will remain behind bars.
I did not attend the trial and am relying solely on press accounts. The press almost never reports a trial accurately. Few reporters comprehend the law of evidence. Those who do see their stories gutted by editors looking for a nugget to make the story readable. There is no way of telling whether the trial judge made errors of significance.
From afar one interesting issue is whether the various cases against Sandusky should have been joined, or tried together. Joinder rules are complex and rely on such factors as whether the evidence of one crime is cross-admissible to prove another. In other words, just because a man robbed bank A it does not mean he robbed bank B. Separately, the two cases may be weak. Tried together, they may show a propensity to prove the man committed both. The law of evidence is generally hostile to propensity evidence claims. The state must prove not that the defendant is a bad man, but that the defendant committed the crime charged.
A general exception to the rule against character or propensity evidence is the use of other crimes or acts to show such factors as knowledge, intent, plan, preparation, opportunity, motive, identity, absence of mistake, common scheme or plan or some other factor that makes evidence of one crime "cross-admissible" to prove another. A trial court must also weigh whether joinder presents the danger of unfair prejudice to a defendant. Given the great number of claims in this case, I suspect this issue to be raised on appeal.
Only if Sandusky raises a federal issue on appeal will his lawyers have a chance to ask the United States Supreme Court to review the case. The court hears few of the many cases presented to it for review.
Once the direct appeals are done, another set of lawyers will then attack the trial and appellate lawyers in what is known as a habeas corpus proceeding, or, as lawyers call it, a collateral attack. The claim will be that they were ineffective, or so performed so poorly as effectively to deprive Sandusky of his Sixth Amendment right to counsel. Such claims are difficult to win. The petitioner, in this case Sandusky, must show that counsel performed so poorly that no reasonable lawyer would have done as badly. But he must also prove that the defective lawyering mattered. A famous case in Texas once found that a lawyer who slept through trial performed defectively but that the case against the defendant was so overwhelming that it didn’t matter.
Attorneys Amendola and Rominger will be in the hot seat in this round. Their motion to ask to be relieved from their job on the eve of trial will be scrutinized. Seven months not enough time to prepare for trial? The case moved quickly, to be sure, but if the lawyers knew the schedule when they signed on, it was their responsibility to see that the work was done. In the end, this case did not present difficult or novel legal issues.
Why was this case tried at all? Why didn’t Sandusky plead? I suspect there really was no room to plea bargain. Sandusky most likely had no incentive to plea. If the plea offer would have resulted in death behind bars, then Sandusky had no reason to avoid trial. Even if the evidence against him was overwhelming, it would be a form of suicide simply to roll over and die. Often cases are forced to trial in what defense lawyers call "slow guilty pleas" because the state won’t budge. Sometimes at trial the unlikely occurs, and an overwhelming case falls apart.
Good lawyers know what it is to stare impossible odds in the eye and to fight courageously to the end. Once the verdict is in, most lawyers have the sense to accept the jury’s verdict and to turn their attention to the next round of litigation in the appellate courts. In the case of Jerry Sandusky, his lawyers just can’t seem to shut up and stop making excuses for what looks like a deplorable performance. Say what you will about Jerry Sandusky, he deserved better than this oafish effort; he will need far better as he attacks his conviction. That process will likely take as much as a decade.