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The Sandusky Trial: Moving Forward with Opening Statements

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Denied. On March 22, 2012, Sandusky defense team lead counsel Joe Amendola filed a thirty-one page omnibus pre-trial motion seeking various relief, including dismissal of many of the charges. On April 12, 2012, following a brief pre-trial hearing, Judge John M. Cleland denied Sandusky's motion without prejudice, meaning that his defense team would be able to bring his motion to dismiss the charges again at another time prior to trial.

Last month, Sandusky's attorneys did just that. On May 16th, Amendola filed yet another motion to dismiss many of the charges against his client. As we discussed last week, the Court heard argument at the May 30th pre-trial hearing, where Amendola focused his arguments on Victims 2, 6, and 8. That motion remained pending through jury selection. On Friday, in a three-paragraph ruling that went into no detail regarding his decision, Judge Cleland denied Sandusky's motion.

While several observers had found some of Amendola's arguments to be somewhat compelling, this decision should come as no surprise. No factual record has been developed in this case because Sandusky himself waived his preliminary hearing in December. Without any factual record, the court would (and, in my opinion, should) be very wary of granting motions to dismiss any charges against the defendant. As the Commonwealth appropriately argued,

The effect of that waiver is to concede that the Commonwealth has established a prima facie case for each count charged. To permit a criminal defendant to raise and argue boilerplate assertions of insufficiency via a pretrial motion would be to render waiver of the preliminary hearing a nullity.

In actual English, what the prosecution is saying here is that Sandusky essentially conceded that there was enough evidence to move forward to trial by waiving his preliminary hearing, and to dismiss the case against him now with no evidence before the court means that there would never be a need for a preliminary hearing in the first place. It's a strong argument by the Attorney General's office, and one that appears to have been effective.

Although this decision was expected, it still does substantial damage to the Sandusky's defense. Other attorneys have noted that the Sandusky defense team's biggest problem at trial is going to be "the sheer numbers." This was Amendola's best opportunity to narrow the scope of the charges against his client. In December, waiving the preliminary hearing appeared to be a gamble that paid off for the defense - Amendola took the opportunity to give an impromptu press conference on the courthouse steps and managed to avoid the bad press that would have followed the alleged victims' graphic testimony. Has that gamble backfired now?

The answer, as it usually is in law, is maybe. Maybe, had there been victim testimony in the record, Amendola could have discredited it and deprived the Commonwealth of their primary argument. But if Judge Cleland had denied the May 16th motion to dismiss anyway, Amendola would still have to prepare a full defense and would have subjected his client to worse publicity than he was already receiving.

The moral of the story? Defending Jerry Sandusky is fraught with risk and no-win situations.

More motions today? While the media set up camp in Bellefonte and its surrounding towns last week for jury selection, the trial itself will begin today, outside the presence of the jury, as Judge Cleland will ask whether either party as any motions in limine. These are motions made by either party whereby the judge rules on the admissibility of evidence. Generally, parties argue that certain information is mostly irrelevant, and that any usefulness it might have is substantially outweighed by the likelihood that it will confuse the jury or severely and unfairly prejudice one of the parties. Many motions in limine have already been dealt with in this case, but it's possible that there will be further motion practice based on some last minute preparation by either party. The judge will rule from the bench, and trial will proceed to opening statements.

Opening Statements. Once the jury is impaneled, the action begins with opening statements. As a general matter, I wouldn't expect to see anything like this:

The party with the burden of proof (here, the Commonwealth) will open first. Opening statements act like a roadmap for trial - each party will set out the physical evidence they expect to show, the testimony they expect to hear, and how it all fits together. Opening statements set the jury's expectations--meet them, and you've established your credibility.But if you fail to meet the expectations you've established, you can do incredible damage to your case.

In theory, opening statements contain no argument. In reality, a good opening contains substantial amounts of argument couched in very careful rhetoric. A good opening creates a narrative for the jury to latch on to, and can be very persuasive. Consider this brief excerpt from the Government's opening statement in another high profile case, the trial of terrorist Zacarias Moussaoui:

September 11th, 2001 dawned clear, crisp and blue in the northeast United States. In lower Manhattan in the Twin Towers of the World Trade Center, workers sat down at their desks tending to e-mail and phone messages from the previous days.

In the Pentagon in Arlington, Virginia, military and civilian personnel sat in briefings, were focused on their paperwork.

In those clear blue skies over New York, over Virginia, and over Pennsylvania, in two American Airlines jets and in two United Airlines jets, weary travelers sipped their coffee and read their morning papers as flight attendants made their first rounds.

And in fire and police stations all over New York City, the bravest among us reported for work. It started as an utterly normal day, but a day that started so normally and with such promise, soon became a day of abject horror. By morning's end, 2,972 people were slaughtered in cold blood.

What is reasonable doubt? The burden of proof here is on the Commonwealth, which must prove its case beyond a reasonable doubt. What is reasonable doubt? Good luck finding a coherent explanation. As retired Supreme Court Justice Sandra Day O'Connor once wrote, "Although this standard is an ancient and honored aspect of our criminal justice system, it defies easy explication."

Here's what we can say for sure. The standard in play here is the highest standard in our legal system, higher than either "preponderence of the evidence" (i.e., "which side has more evidence in its favor?") or the "clear and convincing evidence" standards. It's also easier to define in the negative. "Beyond a reasonable doubt" does not mean "beyond a shadow of a doubt." It does not mean free of any doubt. It is not an absolute, airtight standard that requires the prosecution to be free of any error. This is an especially important distinction in a case such as this one, where there is little to no physical evidence and the case hinges primarily on the credibility of the alleged victims and eyewitnesses like Mike McQueary.

Once opening statements are over, the Commonwealth will put forth its case first, again because it bears the burden of proof. In theory, Amendola and Sandusky have no duty to present a defense--there's no requirement that they call witnesses, cite evidence, or even cross-examine the accusers. The charges will be dismissed at the end of the Commonwealth's case if prosecutor Joseph E. McGettigan's team hasn't produced enough evidence to substantiate the charges.

Before anyone starts theorizing, be very aware that this is so exceptionally unlikely that I shouldn't even waste space discussing it any further. If this case takes some wildly unexpected turn of events, we'll come back to it.

This Guy Gets It. ESPN's Scott Van Pelt struck the correct balance with regard to the jury during his June 7th radio show:

There are things that people need to understand nationally and things that people need to understand locally. Nationally, there is a whole lot of eyebrow raising and handwringing over the fact that the jury has not just a little, but an enormous Penn State presence on it.

The thing that people need to understand nationally is simply this - in this part of the world, Penn State is an enormous institution and it's the kind of place where people who are from there, go there, and stay there. And I think that the fear nationally is that these are "fans" - that you're going to end up with people in the jury box screaming "We are Penn State!" back at each other. I don't think that's a concern that people nationally need to have.

But the thing that people locally need to understand, particularly I guess these jurors, is that everybody nationally is looking at you. And they're looking at you and trusting that you will not be blind to what is alleged to have occurred. Now, it's on the prosecutors to present whatever evidence there is . . . and its incumbent on them to prove its case beyond a reasonable doubt.

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This did strike me when I was reading the AP story. How it was framed was somewhat ominous from my perspective, and I'm quoting - "The attorneys arguing the child sexual abuse trial of former Penn State assistant coach Jerry Sandusky have four days to figure out how to sway a jury heavy with connections to the school." Innocence is presumed. This presumes fandom, and football's got nothing to do with this.

Van Pelt is one of the sharpest commentators in the industry, and the views he expressed during last Thursday's "One Big Thing" segment represent my own very well. Give the five minute piece a listen if you have the chance.

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