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The Sandusky Scandal - Appeals, Anonymity, and the Start of Trial

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Jury selection in the Jerry Sandusky sex abuse trial begins on June 5, 2012.  (Rob Carr/Getty Images)
Jury selection in the Jerry Sandusky sex abuse trial begins on June 5, 2012. (Rob Carr/Getty Images)
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When we last left the scandal saga . . . Joe Amendola, Jerry Sandusky's defense attorney, had filed several pre-trial motions. The first of those, a motion filed May 9th for a continuance to delay the start of trial, was denied in a two-sentence order by Judge John Cleland. Amendola also filed a motion on May 16th, seeking dismissal of the charges against his client. In response, the Commonwealth amended the charging documents on May 18th to add further details, including certain dates and graphic details of the alleged abuse. On Monday, May 21st, Judge Cleland ordered a pre-trial hearing for May 30th to resolve any outstanding legal issues before the June 5th jury selection.

Dismissed? At the hearing, the Court heard argument on Sandusky's dismissal motion.

In the case of alleged Victim 2, reportedly witnessed by Penn State assistant coach Mike McQueary, there's too much of a credibility issue, Amendola said. McQueary's story, including the timing, has changed. Cleland said he thinks the jury should make that decision.

Amendola's argument regarding alleged Victim 6 is that Centre County District Attorney Ray Gricar decided in 1998 there wasn't enough evidence to prosecute, so the jury shouldn't hear it, either. Gricar disappeared in 2005.

Regarding alleged Victim 8, Amendola's argument is that it involves hearsay from a janitor who cannot testify for medical reasons. Cleland appeared to be leaning toward Amendola's argument that a jury shouldn't hear what the janitor told others based solely on a legal argument that it was an "excited utterance," but prosecutors said they'll present enough circumstantial evidence to put the case in perspective for jurors.

Cleland noted that Amendola had a chance to challenge the evidence a preliminary hearing, which Sandusky waived in December.

That motion was still pending as of press time, which, incidentally, is the eve of trial. Otherwise, the May 30th pre-trial hearing was fairly uneventful, as Amendola's latest request for a continuance was denied. But that was just the beginning.

"No date for trial is ever perfect, but some dates are better than others."[1] Amendola had requested the continuance because two of the Sandusky team's expert witnesses would not be ready for trial, one of the support staff members was having surgery, the team had not had enough time to review all of the available evidence, and former Penn State administrators Gary Schultz and Tim Curley would be unavailable to testify because they would exercise their Fifth Amendment rights in anticipation of their upcoming criminal trials. Those reasons obviously did not change following Judge Cleland's pre-trial hearing ruling, so Amendola sought to have him certify his order so that he could appeal to the Pennsylvania Superior Court, one of Pennsylvania's two intermediate appellate courts. Judge Cleland denied that request as well.

Despite the lack of certification, Amendola sought emergency relief from the Superior Court. That request was also denied, so Amendola took one last swing. On Friday, June 1st, Sandusky's defense team sought emergency relief from the Commonwealth's highest court. On Monday, June 4th, the Pennsylvania Supreme Court denied Amendola's final request. Jury selection will start today as scheduled.

The Great Debate Over Anonymity. While the Sandusky legal team spent their precious remaining time desperately fighting to delay the trial, peripheral issues otherwise dominated the conversation. Early last week, several of the alleged victims filed motions to keep their identities concealed throughout the course of the trial. The alleged victims had been known only by number thus far. The defense had no objection to the alleged victims request.

The Black Shoe Diaries commentariat had a spirited debate on the subject last week. While acknowledging that he could have ruled on the applications with a simply summary order that contained no underlying reasoning, Judge Cleland noted the importance of writing a decision "because the motions have a sympathetic appeal and to dismiss them without any explanation might lead to confusion and misunderstanding." Yesterday, Judge Cleland denied the alleged victims application.

Having considered the issue, it is my view that there is no support in Pennsylvania law for offering anonymity to an adult witness because the witness is one of a class of victims of a particular form of crime. It may well be in a specific and unique case that a particular witness, for any number of reasons, ought to be protected with a pseudonym. But only one of the alleged victims who filed such a request in this case supported it with evidence of potential harm, and even that affidavit asserted the kinds of generalized traumatic impact from testifying that would occur to any patient in treatment.

Courts are not customarily in the business of withholding information. Secrecy is thought to be inconsistent with the openness required to assure the public that the law is being administered fairly and applied faithfully. Consequently, there must be justifications of public policy that are very deep and well-rooted to support any measure which interferes with the public's ability to observe a trial and to make their own judgments about the legitimacy of their legal system and the fairness its results.

Under our system of criminal law charges are brought against a defendant for conduct that offends "the peace and dignity of the Commonwealth." It is old language that reflects an ancient value: ours is not a system of private retribution carried out at public expense. A criminal prosecution is not brought to vindicate the rights of only a victim of crime, but to vindicate the rights of the public as a whole to live secure and peaceful lives. A prosecutor's duty is to use the resources of the office to promote the public good in its many manifestations, not only to obtain private retribution for a specific victim.

Because the purpose of our criminal justice system is to protect our collective welfare, every citizen has a civic duty to participate in the operations of the system to assure it works for our collective benefit - as a witness, as a juror, even as an observer in the courtroom. As citizens we have certain responsibilities to protect the safety and security of the community as a whole, and to that end each of us has a duty to the community to testify when called to do so regarding the facts of an alleged crime - no matter how personally unpleasant fulfilling that duty may be.

I encourage everyone to read the decision. It is well reasoned and thoughtful. Even so, I still disagree. Judge Cleland's points about openness versus secrecy and the duty of the citizenry are values to which the justice system must adhere. He notes that "all reasonable efforts have been made by the Court and by counsel" to protect the identity of the alleged victims, and he believes the effort to remain sensitive to the nature of the victims' testimony will continue, though "the veil must be lifted" once trial begins.

On page 4 of the order, Judge Cleland asks rhetorically why only the alleged victims of a sexual assault should be protected. And indeed, he is correct in noting that even "minor" crimes can have "major psychic consequences." This is true; but to deny that the alleged victims of sexual assault are no more harmed than any other class of victims is an argument that values academics over practicality. We know from years of study that victims of sexual abuse are uniquely traumatized in comparison to other crime victims. They deserve special protection just as much as a criminal defendant deserves (and has the Constitutional right) to face his accuser. It seems to me that this is where Judge Cleland went astray:

Arguably any victim of any crime would prefer not to appear in court, not to be subjected to cross-examination, not to have his or her credibility evaluated by a jury - not to put his name and reputation at stake. But we ask citizens to do that every day in courts across the nation.

Except no one is asking for the alleged victims to avoid any of those other unpleasantries. No one has suggested that Sandusky's accusers should not appear in the Court of Common Pleas, or that Amendola should not be able to cross-examine them on their allegations. No one has suggested that a jury should not be able to make credibility determinations of the accusers before deciding Jerry Sandusky's fate.

All that was requested here was a bit of compassion. One of Judge Cleland's primary concerns is undoubtedly that a grant of anonymity makes the alleged victims look credible in the eyes of the court, which might prejudice the defense. A small bit of creativity is all it would have taken to attempt to keep the victim's names shielded from the public. Allow the motion to remain pending through jury selection. Once the jury is selected, allow the victims to choose pseudonyms, and sequester the jury to prevent them from knowing that the anonymity had been granted. Make allowances to redact any documentation with names on them, or simply require oral testimony and prevent the documents from being shown to the jury. These aren't the only possibilities that exist. I'm quite certain that the legal brigade at BSD could think of many creative solutions to the problems that exist. Of course the court should be concerned about Sandusky's defense. Me? Like Joe Paterno, I'm far more concerned about this.

Access for the Fourth Estate. Most of us naturally assumed the trial would go forward as scheduled with all charges, so perhaps most important to our readers is the access that members of the media will be granted throughout the course of the trial. In his May 30th order, Judge Cleland decided to permit "electronic communications" (read as: blogging and tweeting) from the courtroom, so long as they do not quote testimony verbatim. In theory, this keeps with a Pennsylvania regulation (Rule of Criminal Procedure 112) that bars broadcasting from the courtroom.

In what must only be a realization in how ridiculous it would be to allow untrained media to interpret the testimony and legal strategies of the participants, a group of media organizations, including Penn State's independent student newspaper, filed an intervening motion to clarify the meaning of "verbatim account of the proceedings." In an order that seems to indicate just how weary he is of pre-trial motion practice (particularly from non-parties), Judge Cleland reversed his own decision from last week and decided that any electronic communication "to any person or device either in or out of the Courthouse or Courthouse Annex" is prohibited.

So where does that leave us? Jury selection starts tomorrow. In a widely publicized, high profile case such as the Sandusky trial, this is a long and arduous process that could take quite some time. A good explanation of the jury voir dire can be found on the Centre County government website. Considering the number of people in Centre County tangentially associated with Penn State, the Second Mile, Jerry Sandusky, and any of the alleged accusers, this could very well give Amendola's team the delay it needs. This is the start of the biggest trial in the history of Centre County. If we're lucky, it's the beginning of the end of the biggest scandal in the modern history of American universities. Can this guy do the impossible and clear Jerry Sandusky of wrongdoing? Or will the jury that's selected find the litany of accusers to be credible enough to send Jerry Sandusky away for life?

Starting tomorrow, we'll begin to learn the answer.

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[1] Memorandum Order, dated May 30, 2012, from the Honorable John M. Cleland, in Commonwealth v. Sandusky, CP-14-CR-2421-2011, CP-14-CR-2422-2011, at 4.