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!