Why did Jerry Sandusky waive his right to hearing on sex abuse charges?

Jerry Sandusky was scheduled to face his accusers for the first time Tuesday at a preliminary hearing. Instead he waived his right to the hearing, raising questions about the defense team's tactics.

By , Staff writer

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    Former Penn State assistant football coach Jerry Sandusky arrives for a preliminary hearing to determine if there is enough evidence to hold him for trial on charges of sexually abusing boys, at the Centre County Courthouse in Bellefonte, Pennsylvania, December 13, 2011.
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The dramatic case against disgraced former Penn State football coach Jerry Sandusky was scheduled to ramp up Tuesday with a preliminary hearing, which would have forced Mr. Sandusky to face his accusers for the first time.

That didn’t happen. Sandusky’s defense team, in a last-minute turnaround, waived their client’s right to the hearing. For prosecutors, the decision is a clear sign the defense is preparing for a plea deal arrangement, which will automatically send Sandusky to prison without the need for a trial.

The defense team, however, says they walked away from the preliminary hearing to prevent a rehashing of the allegations before a trial. A trial, they say, would allow the defense to more fully cross-examine the alleged victims, who the defense suggests are in collusion with each other for financial gain. 

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Either way, legal experts say that despite the overwhelming evidence against Sandusky, the 50 counts of abusing 10 boys, and his missteps in recent media interviews, the case will not be open and shut.

“I know there’s this perception that this is a slam-dunk case for the prosecutors. But there are icebergs out there that can sink this case,” says Andrew Stoltmann, a Chicago attorney.

Sandusky says he is innocent of charges he sexually abused boys over a 15-year window. He remains under house arrest on $250,000 bond and is wearing an ankle monitor.

A preliminary hearing is meant for the judge to determine probable cause. Despite that being very likely, locking in victim testimony under oath would have provided an advantage for the defense, which could then wield it against the alleged victims in a trial, says Andrew Pollis, a law professor at Case Western Reserve University School of Law in Cleveland.

The hearing provides “a window into what the prosecution’s evidence is, and it helps you prepare for trial so you can refute certain things later,” Mr. Pollis says. “The advantage of a preliminary hearing becomes moot if [Sandusky] is going to plea.”

The advantage of a plea deal for the defense is that Sandusky would receive a lesser sentence than what he would likely receive from a jury trial. In this scenario, the recommended sentence is negotiated between the prosecution and the defense, although the judge is not required to accept it.

Further evidence a plea may be imminent is the bravado of Sandusky’s legal team, which is already suggesting the victims are scheming for financial gain.

They also say that they will make Penn State assistant coach Mike McQueary the key component of their case were it to go to trial. Mr. McQueary told a grand jury he witnessed Sandusky raping what looked to be a 10-year-old boy in 2002. The defense says McQueary is vulnerable because of inconsistencies in recent statements he made when compared with his original testimony.

The claim by Sandusky lead attorney Joe Amendola that the victims will be “aggressively investigated” to see if there is collusion is seen by some legal experts as a possible move to dissuade prosecutors to go to trial.

“We’re attacking these cases one at a time.… What better motivation can there be than money?” Mr. Amendola said outside the courthouse in Bellefonte, Pa., Tuesday. Amendola said also “there will be no plea deal” and characterized his team as engaged in “a fight to the death.”

Amendola is allowing Sandusky to talk to the media. Two interviews so far, one with Bob Costas and a second with a New York Times reporter, emboldened lawyers for victims because they say they show Sandusky as strangely aloof from the realities of the serious charges against him. In the interviews, for example, he freely admitted to showering with children and sleeping alone with them in hotel rooms. Also, he was hesitant in answering Mr. Costas when asked if he was a pedophile or, later, if he was sexually attracted to young boys.

“There are very, very few lawyers who aren’t scratching their heads and wondering why this is happening,” Pollis says of the decision to allow the Sandusky interviews to take place. “The cardinal rule of criminal defense is not to let the client talk.”

However, Mr. Stoltmann says that despite Sandusky’s poor performance, the interviews did allow him to deny the charges, which will help sway potential jurors. Also, the less media savvy he is, the less likely he will be perceived as a cunning predator.

“What is crucial is he gave a vehement denial should this case make it to trial. There’s not any question about that,” he says. Stoltmann also said the defense will hone their strategy on the extensive time that lapsed between when the abuse allegedly took place and when the accusers came forward, to suggest the victims have ulterior motives.

“[The victims] will be put through the ringer,” he says.

Sandusky’s next court date is Jan. 11, when he is scheduled for arraignment.

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