The first thing Jerry Sandusky’s lawyer told the jury deciding his client’s fate was: “This is a daunting task.”
A week later, attorney Joseph L. Amendola is facing no less of a challenge, according to legal observers. Amendola, attorneys said, has few cards to put on the table at the start of the trial, and no new ones have developed after cross-examining prosecution witnesses.
Today, Sandusky is expected to start his defense. It will follow what was a shorter-than-expected presentation of the evidence against him, under the direction of lead prosecutor Joseph E. McGettigan. The case presented against the ex-coach has been widely viewed by trial watchers as compelling.
Thus, the “million-dollar” question: Does the defense call Sandusky?
For some, the answer was an unequivocal yes.
Philadelphia-based criminal defense attorney Michael Engle said he doesn’t see many other options for the former Penn State assistant football coach, who will also likely bring in a number of character witnesses to speak to his good will.
Engle called taking the stand in his own defense Sandusky’s “only shot at convincing this jury he didn’t do this.”
While he acknowledged a grim prognosis for the defense — “If what I’m reading is in any way accurate, it doesn’t sound good” — Engle noted that a good defense presentation could at least raise reasonable doubt.
“When a defendant testifies in a criminal case, much of what happens beforehand goes out the window and it comes down to the fundamental question: Does the jury believe this defendant?” Engle said. “If they believe him. They’re going to have a hard time convicting him.”
For Amendola, the theory has long been the same: The eight men testifying against the coach conspired to extort money from Sandusky, the charity through which he met them, and the heralded institution where much of the scandal unfolded.
Attorneys interviewed by The Legal agreed: It wasn’t a perfect line of defense. But it’s what the ex-coach has.
Last week, Amendola asked many of the coach’s alleged victims if they had hired civil attorneys and what type of fee agreement they had struck with those attorneys in an attempt to bolster that theory.
But, according to two lawyers who watched the trial unfold last week, the state’s evidence has dismantled that strategy.
According to Philadelphia plaintiffs attorney Thomas R. Kline, who is representing Victim 5, the line of questioning pointed to what he called an “anti-lawyer theme” developing from the defense, which he said was “probative of nothing” and an “assault on the legal system.”
“A proper evidentiary question, which is probative, [is]: ‘Do you intend to file a civil claim for monetary damages?’” Kline said. “I don’t quite understand how the fact of legal representation is probative of bias.”
Kline said that if he were closing for the prosecution, he would point out that Sandusky himself brought Amendola along when Clinton County Children and Youth Services called him in for an interview.
But the “anti-lawyer” angle does little to settle the accounts of two eyewitnesses.
One of those witnesses, former graduate assistant Mike McQueary, told his account last week of what has perhaps become the scandal’s most defining alleged incident. In 2001, McQueary said, he saw Sandusky anally rape a boy in a Penn State locker room.
For Kline and attorney Slade McLaughlin (who represents Victim 1), who both traveled to Bellefonte, Pa., to watch the proceedings last week, McQueary’s account was compelling enough.
As McLaughlin put it: “You could throw out all the kids’ testimony and you’ve still got Sandusky versus McQueary. And I think McQueary’s tough to beat.”
While Amendola suggested Sandusky may testify — he told the jury it would “hear from” the ex-coach in his opening statement — the move remained a defense wild card after the prosecution rested.
Technically, the jury has already heard from Sandusky, as prosecutors played footage of a televised interview between Sandusky and NBC’s Bob Costas that has been widely viewed as incriminating.
Referring to the interview, McLaughlin said: “You’ve seen what the guy is capable of.”
There were other issues that limited the viability of the defense.
Following what Kline called an “evidentiary free-for-all” last week, it was clear from Sandusky’s own statement to a CYS caseworker that he took naked showers with a number of his accusers. The statement was read onto the record over the state’s objection, as Amendola cross-examined CYS caseworker Jessica Dersham.
Last Tuesday, Dersham told the jury that Sandusky, in the CYS interview, admitted to having a three-year relationship with Victim 1. At one point Sandusky said he “felt used” by the teenager, but denied that anything of a sexual nature took place, according to Dersham.
According to her testimony, Sandusky did, however, tell Dersham that he could not “honestly” answer whether his hands had gone beneath the boy’s waistline. He admitted to the back-cracking and kisses on the forehead. He said he followed the boy’s school bus after an argument about whether or not Victim 1 would help him with his Second Mile charity’s golf outing.
“That’s admitted,” Kline said. “There’s no defense to that.”
What was left were the accounts of the accusers, many of whom said they were not in court last week by choice. They were enough to discredit that of the coach, Kline said.
“That’s the power of it,” Kline said. “As you sat there and watched all these young men come, you realize that they were all dragged into the courtroom to tell a story they didn’t want to tell.”
One accuser, according to Kline, admitted that Sandusky never abused him on overnight trips the pair allegedly took together.
“If he was making something up, he would have every reason to say it was on an overnight trip,” Kline said. “There’s an incongruity as to why, when he had the most opportunity, when he had one victim alone, he didn’t try to take advantage or he didn’t take advantage.
“That had a ring of authenticity.”
There was also a question as to whether Sandusky’s wife would take the stand in her husband’s defense this week.
At the beginning of the trial last week, Dottie Sandusky exited the courtroom after presiding Senior Judge John M. Cleland told any potential witnesses to leave.
According to McLaughlin, Dottie Sandusky was put on watch after the prosecutors’ presentation last week. In it, accusers testified that the coach’s longtime wife stayed upstairs while they said Jerry Sandusky abused them in his basement. One said his screams for help from that basement went unanswered. Another testified Dottie Sandusky nearly walked in on him being coaxed into oral sex.
However, Kline said it may be safer for Jerry Sandusky’s wife to testify than for the defendant to take the stand himself.
“There’s an enormous risk in calling her, but maybe less of a risk than calling Sandusky,” he said.