Sandusky guilty

Jerry Sandusky was found guilty of all but three of the counts that went to the jury – 45 counts in total that will certainly lead to incarceration for the rest of his life.  The jury found him not guilty of 3 counts, and there were four more counts at the beginning of the trial- 3 were dismissed by the court and one abandoned by the State.  His attorney admitted he’d be shocked if he were acquitted, especially in light of having so many charges.  He was quite correct- and I’d add that with so many accusers, the chances that the accusations could be rebutted, or could be untrue, was miniscule.  Lawyerin’ Joe Amendola, in spite of his flaws, didn’t have a strong case to work with.  I’m reminded of the old Dana Carvey bit about O.J.- making light of how great a conspiracy it would have had to have been for everything to be untrue.

So the question is appeal… News has hit that the Defense team asked off the case at the last-minute claiming unpreparedness, clearly establishing one of the issues that will be raised on appeal.  I remarked months ago that it looked like the court was rushing the case to trial.  It was basically seven months from the arrest to trial, which is rapid for a felony case, and more so when the case is so complicated and involves so many accusers.  The Defense request for a continuance was not the first time they had indicated they wouldn’t be ready for this month’s trial date.  And according to the AP article linked above, there were documents received late from the prosecutor that bolster the Defense’s difficulty in preparing their case. 

This is a major concern- while there is an interest in seeking justice as swiftly as possible, the need to move a case along cannot trump the right of the accused to be prepared and to be represented by competent counsel.  Unprepared counsel is not competent counsel.  It will be interesting to see how the appeal of this issues plays out.

A secondary, and perhaps legally more interesting, issue is the use of hearsay testimony during the trial.  The State presented statements from a janitor who was unavailable to testify due to dementia.  The evidence was presented as hearsay through some other janitors to whom he relayed it.  The state did present some corroborating evidence, but not to all the graphic details.  While the most apparent concern is that the statements are hearsay, I’m more concerned about the violation of the Constitution’s confrontation clause.

The Constitution’s Bill of Rights guarantees that those accused of a crime have a right to confront those who make the accusations.  Normally, that means the accuser has to take the stand, make the accusation in front of the Defendant, and the Defendant gets a chance to cross-examine the witness.  The most frequent exception is if the Defendant had a previous opportunity to confront the witness, perhaps at a deposition, or if the statement was a dying declaration.  The purpose is to allow the Defendant a chance to attack the reliability of the statement.  A hearsay statement is substantially more difficult to challenge, and generally shouldn’t be relied upon to possibly convict someone of a criminal charge, big or small.

This can be a challenge for prosecutors on cases where accusers are not available to take the stand, and often there is only one accuser.  Some states passed laws allowing exceptions to the confrontation clause- though many of these were struck down by the Supreme Court in Crawford v. Washington. The standard set forth in that case allows such hearsay testimony to come in if it’s not “testimonial”.  I didn’t get to see the argument on the issue in the Sandusky case, but I suspect the court found that the statement from one janitor to another did not fall under the testimonial umbrella.  Thus the court may have followed the law, though the law may not track the Constitution.

The Sixth Amendment provides, In all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him.”  It doesn’t list exceptions.  It doesn’t say, unless the non-testifying witness was a janitor talking amongst his janitor buddies.  It doesn’t say it doesn’t apply to 911 calls or in emergent situations.  It’s very easy to dismiss these concerns when the testimony is used against a monster like Sandusky.  It isn’t that easy if you think how you’d feel if the state was trying to convict you over chit-chat in the break room. 

There should be some interesting litigation on the Sandusky appeal.  I will try to keep up on it on CrimCourts!

4 responses to “Sandusky guilty

  1. I’m curious about the dismissal of the three charges so close to the jury deliberation. Couldn’t that be seen as prejudicial to the outcome of all other charges? The judge can indicate to the jury that his dismissal shouldn’t indicate anything about the other charges, but at the same time doesn’t it indicate the judge’s belief that there is enough guilt to prove the other charges? Should the judge have withheld the dismissal till after deliberation or ideally shouldn’t these dismissals have happened pretrial? I

  2. Excellent questions! Short answer- the state didn’t make their case on those counts. In Florida, we call that Judgment of Acquittal. Basically, after the state rested, the judge found that not enough evidence was presented for those counts to even be considered by a jury. His ruling on those counts should not have any effect on the other counts. Sometimes judges will reserve ruling on a Judgment of Acquittal until the jury decision, but with so many counts left, I expect he didn’t feel the need on these few. Note: there was another count the State voluntarily dismissed prior to these counts because they recognized they had not made their case.
    This could not have happened pre-trial, because it’s not until they present their case would it have been proper to rule on. An interesting parallel issue is whether hearing the allegations on these counts would unfairly prejudice the jury to the others. Again, there are so many counts that it is unlikely in the Sandusky case, but it’s something I will be considering in the future.
    Thanks for your question, Keith!

  3. I think your argument at the end about the sixth amendment is a tad weak considering that none of the amendments really have exceptions drawn in them. They have all been excepted by Supreme Court decisions, including those that have allowed the hearsay examples you cite. However, related to the hearsay testimony, is it possible, if not likely, that an appeals court could agree with you that it should have been omitted yet still uphold the decision based on the minimal nature of the violation. Assuming that in the remaining portions of testimonial evidence there was sufficient grounds for conviction on the charges, I could see an appellate court saying, “You can’t do this” to the judge to set a precedent, but still saying it did not affect the outcome of the case.

  4. Good point on exceptions, most of the Bill of Rights has been given asterisks by the courts at some point. To your other question, I don’t think the court will disapprove of the use of the statements, based on the Supreme Court rulings on non-testimonial statemetns. If they did, they could still uphold most of the convictions. I think they would have to reverse on those counts that the testimony related to, but that is probably only a few of the 48 convictions. Normally, if such graphic testimony is thrown out, the court would reverse and remand for a new trial. However, there was so much other testimony and other accusers, the court could find that this testimony didn’t substantially affect the other counts. So, the court could let them stand, especially in light of the high profile status of the case. That shouldn’t be a factor- but any judge would have trouble putting it aside- they’d get creamed if they set aside the verdicts, even if they did order a new trial. His stronger argument on appeal is the readiness of his attorneys after the court pushed the case so rapidly to trial.

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