The Sandusky Trial, Week 2 - No "Rest" for the Weary

The Prosecution Rests. When Senior Judge John M. Cleland announced at the end of jury selection that he expected the presentation of evidence in the Jerry Sandusky trial to last "about three weeks," a number of experienced people were taken aback. Considering the number of allegations against Penn State's former defensive coordinator (52 in total), the number of accusers ready to testify (eight), and several other witnesses, all of whom were expected to receive a complete and thorough cross-examination by a defense team led by Joe Amendola, three weeks seemed optimistic.

With that in mind, people were downright shocked on Thursday when Judge Cleland happily announced that the trial was moving ahead so briskly that the prosecution's case-in-chief was expected to be complete on Thursday, just four days into the largest trial in the history of Centre County. While the prosecution called one witness briefly this morning, by and large that prediction held true. The prosecution rested this morning.

All in all, we did hear testimony from the eight alleged victims, eyewitnesses, and law enforcement. We heard from victims' parents and even a Penn State janitor who was filling in for a colleague who claimed to be an eyewitness. The prosecution did not appear to leave any potentially helpful witnesses off the stand, and they elicited compelling testimony for each of them. What exactly was it that made the prosecution move so swiftly?

Cross-examination appeared to be fairly limited, which seemed to produce victory after victory for Joseph McGettigan and the Commonwealth. As Dan Wetzel notes, the defense couldn't do very much:

Legal experts and courtroom observers agree that Sandusky was beaten to a pulp by the prosecution witnesses this week and there was little Amendola or co-defense counsel Karl Rominger could do to stop it.

While some maneuvers can be questioned, the two are dealing with what lawyers jokingly call, "bad facts." Namely, their client had a propensity to, at the very least, shower alone and cuddle shirtless on waterbeds with young boys.

They can't even cross-examine one of the prime witnesses, a former Penn State janitor who now has dementia but alleged a particular graphic 2000 assault in a locker room shower. Judge Cleland allowed hearsay evidence to be admitted, a brutal hurdle for an already challenged defense.

Only once during the onslaught was Amendola able to hint at an ability to argue that an alleged assault didn't happen. That's when Victim No. 10 claimed he was abused while riding with Sandusky in a silver convertible. Amendola harped on the car during cross examination. Sandusky sources say Jerry has never owned such a car and no one has ever seen him driving one.

Other than that, Amendola has been forced to seemingly concede that Sandusky was present when the alleged acts occurred. The line drawn in the argumentative sand occasionally was about whether there was actual penetration or just naked rubbing of private parts. It's not a promising place for a defense to operate.

But even beyond bad facts, the defense team seemed to be controlled by witnesses. Based on all available quotations, Amendola's crosses were not particularly tight. Cross-examination should ideally be a place where the defense can ask leading questions (a tool that is unavailable with direct testimony) and get responses that it is able to use for their closing arguments. Instead, Amendola and Rominger appeared to allow the witnesses to control them, asking open-ended questions and consistently getting "bad" answers. That's truly not a promising place for a defense to operate.

Defensive Problems. Witness testimony was very problematic for the defense. I won't begin to recap the graphic nature of the testimony[1], but suffice to say that McGettigan structured his case effectively. His best witnesses went on first and last, delivering fairly horrific allegations that were sure to leave lasting impressions in the minds of jurors during the three-day recess. Beyond that, there were two key moments during the first week that made defending Sandusky undeniably difficult. The first was the interview Sandusky gave in November to Bob Costas on NBC's Rock Center newsmagazine, excerpts of which were played for the jury on Wednesday. Sandusky sounded aloof and, frankly, guilty. Even worse for the defense, news broke today that the jury would get to hear the unedited transcript of the interview, featuring this quotation:

In terms of -- my relationship with so many, many young people. I would -- I would guess that there are many young people who would come forward. Many more young people who would come forward and say that my methods and -- and what I had done for them made a very positive impact on their life. And I didn't go around seeking out every young person for sexual needs that I've helped. There are many that I didn't have -- I hardly had any contact with who I have helped in many, many ways."

Worse news for the defense came when, after heated argument from both sides, Judge Cleland allowed a Penn State custodial staff member to provide testimony about what a colleague told him about seeing Sandusky and a young boy in the shower in the Penn State football facility some years ago. Normally, such testimony would be considered hearsay, and would be inadmissible. Here, however, the eyewitness is unavailable to testify because he suffers from dementia. The testimony given by the janitor, however, falls into the hearsay exception known as an "excited utterance," and was allowed in by Judge Cleland over a defense objection. The janitors seemingly have no reason to fabricate testimony or any kind of case against Jerry Sandusky. That moment, more than any other, may have dealt the defense its biggest blow.

Today, tomorrow, and the next day. With the prosecution resting, defense attorney Karl Rominger made the typical defense motions, asking Judge Cleland to dismiss the case against his client for a variety of reasons. While the judge expressed doubt about one charge and the prosecution withdrew another, fifty-one charges will continue to the jury, assuming a plea deal isn't reached.

With that in mind, Sandusky's team attempts to defend the impossible. It seems obvious that the defense will attempt to parade out a group of witnesses who will testify that Jerry Sandusky is a wonderful, yet perhaps overly affectionate, community figure with virtually impeccable character. In fact, former Penn State offensive line coach (and Sandusky confidant) Dick Anderson was the defense's first witness, and testified to Sandusky's character.

Given the reported credibility of last week's alleged victim testimony, that doesn't seem particularly useful. The defense's best chance was to severely undermine the alleged victims through cross-examination. That didn't happen, and character witnesses are probably not going to remove the explicit images that jurors were given by the accusers last week. Amendola and his team need something stronger - perhaps they'll find "Victim 2," who will testify that McQueary did not see what he purports to have seen. Perhaps they'll have a witness who can testify to a financial motive for the alleged victims to conspire with one another. Or perhaps their best chance comes from the most unlikely source - Jerry Sandusky himself.

Of course, the big question in everyone's minds is: Will Sandusky take the stand?

Sandusky doesn't have to explain himself or refute the allegations. The judge will instruct the jury they can't infer guilt if Sandusky decides to keep silent. The burden of proof is on the state, not the defense.

But Amendola assured the jury in opening statements that they will hear from his client. If he doesn't follow through on that promise, it could reflect poorly on him and Sandusky, said Steven L. Breit, a Lancaster criminal defense attorney and Fox News legal analyst.

"He would lose credibility with the jurors, and his client will suffer the consequences," Breit said. "If he doesn't do as promised, the jurors will hold him accountable."

On the other hand, experts point toSandusky's awkward interview with NBC's Bob Costas in November as a reason for him to not take the stand.

Jurors listened to the Costas interview recording, but Cleland instructed them to disregard an erroneous segment where Sandusky was asked twice by Costas if he's sexually attracted to young boys. The judge told jurors they must consider a printed transcript of the interview.

"If you leave this guy open for cross-examination, given how we've seen he reacts to simple questions from Bob Costas, it could win the case or end up losing the case," Breit said.

"If I was counsel, I would never put him on the stand," Breit said. "But based on how devastating [the evidence against him is] they might not have any other choice."

The prosecution may have "rested," but you can bet they aren't getting much rest at all. Instead, they'll be working hard on crafting a cross-examination of Jerry Sandusky that may be the most brutal portion of the trial. The defense is engaged in an uphill battle, but as we've all seen in other high profile trials, such as the cases against OJ Simpson and Casey Anthony, anything can happen. As shocking as the past week was, this trial is still only halfway over.

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[1] Here's a good place for that, if you're so inclined.