I can’t believe what I have heard. In an interview with Bob Costas, Jerry Sandusky admitted to showering with children and “horsing around” with them. When asked out right if he found children sexually attractive, Sandusky provided a delayed response instead of an unequivocal “no.”
Any normal person falsely accused of a child sex offense would respond with an immediate and and unequivocal answer in the negative.
Even more surprising were the moronic statements made by his lawyer, Joe Amendola, who described Sandusky as a big kid and a jock, stating that “Showering with kids does not make him guilty.”
As a criminal defense lawyer, all I did was cringe as I listened to these moronic interviews.
In the world of criminal defense, making statements like these at this stage of the case is akin to a wide receiver intercepting a pass and running the wrong way down the field… on purpose.
It was major folly to reveal their strategic position because there is no way to know what prosecutors can prove and cannot prove this early on in the case.
Will all the charges be proven beyond a reasonable doubt or will only some of the charges be proven? If only some of the charges are proven, which ones?
A criminal defense attorney and a criminal defendant cannot comment about any aspect of a case until they have a very good idea of what the evidence will prove and not prove.
Is the prosecution’s evidence based on hearsay or is it based on forensic evidence? Will all of the alleged victims testify or just one or two of them? Of those that do testify, what will they say? Is the eye witness testimony reliable? Why didn’t they immediately report this case to the police if they really saw what they claimed to see?
Were any of the victim’s coerced? Did any lie or embellish their stories for personal gain? Has any victim or witness provided an materially inconsistent statement? Do any of the victims or witnesses have credibility issues?
Is there any lack of evidence or conflict in the evidence?
While most people have made up their mind about Jerry Sandusky’s guilt, a criminal defense attorney is hired to be a skeptic. His/her job is to question everything and take nothing for granted.
By doing so, a criminal defense lawyer acts as a check and balance on Governmental power. By creating an adversarial system where a criminal defendant has the right to a lawyer who is going to be a pain in the ass to everyone and who will check every detail of every detail to make sure that there is sufficient evidence to support these horrific allegations, the Constitution makes sure that the Government is never placed in a position where it can throw around criminal charges without the ability to back them up.
In so doing, the Constitution provides a safeguard against unjust prosecution.
Once a criminal defense attorney has determined what the prosecution can and cannot prove, the next step is to formulate a strategy.
No matter how bad a case may seem at first, some of the most impressive courtroom reversals were had after a criminal defense attorney did his/her job.
If the evidence is lacking, it may pay to force the prosecution to trial so that a jury can decide if there is enough reliable evidence to support a conviction. In the alternative, if the evidence is strong and overwhelming, going to trial may not make any sense.
If going to trial is not an option, the criminal defendant has no choice but to negotiate a plea bargain or throw himself on the mercy of the court and seek mitigation.
As word of this case spreads, Sandusky’s defense lawyer should have also been prepared for the possibility that more victims may come forward and additional charges may be filed.
By taking such a strong position this early in the case, Sandusky and his lawyer have boxed themselves in and eviscerated their ability to respond to changing conditions.
Most importantly, by denying he had any sexual contact with these kids, Sandusky has also scuttled his ability to seek mitigation from a judge based on an acceptance of responsibility.
As I have said since this case was publicized, the prosecution is most likely able to get enough convictions to incarcerate Jerry Sandusky for the rest of his natural life.
Given this reality, it makes no sense to fight a war that will only be lost and which will only result in one’s complete destruction.
Clearly, going home from prison in a box is not considered a win for any client.
However, when a criminal defendant is faced with a case that cannot be won at trial, he/she has no choice but to seek mitigation, when possible.
Even in murder cases, the defense may be able to avoid the ultimate sanction by building a case based on mitigation. In fact, in many murder cases the defense does little to challenge guilt at trial, but then puts on a major defense during the penalty phase.
In the context of civil litigation, this is like admitting liability but going to trial on damages.
However, when a criminal defendant makes a blanket denial before he knows where he stands, it is impossible to reserve the ability to take responsibility and seek mitigation.
Now, Sandusky’s only option is to deny-deny-deny and fight.
At the end of the day, it sounds like amateur hour in the Sandusky defense camp. No criminal defense lawyer in his right mind would ever allow his/her client to be interviewed by the media one week into the case.
This is especially true where the client is to make moronic admissions like showering with kids.
In the thousands and thousands of criminal cases I have litigated as a criminal lawyer, I have never seen a strategy like this before.
That leads me to think that it isn’t strategy. If my gut instinct is right, Sandusky is the one calling the shots… not his lawyer. Thats weak and shows a serious lack of experience.
Think of it like this: Jerry Sandusky is working on his very first criminal case without even the benefit of a law school education.
If he has any brains, Sandusky will sit this one out and let a real criminal defense lawyer do the lawyering.