By John L. Micek, Peter Hall and Andrew McGill, The Morning Call (Allentown, Pa.)
BELLEFONTE, Pa. — To hear his lawyer tell it, Jerry Sandusky’s decision to waive a preliminary hearing Tuesday was a tactical masterstroke that will enable the former football coach to build a defense against a staggering 50 counts of child sexual abuse.
Talk to legal experts and you get a different answer: The decision to pass on the chance to cross-examine witnesses is almost always a sign that a plea deal is imminent — even if Sandusky, his lawyer and prosecutors insist it isn’t.
Shocking the packed courtroom, Sandusky’s gambit came moments after the Nittany Lions’ former defensive coordinator disappeared into Judge Robert E. Scott’s chambers with his attorneys and the prosecution. They emerged to announce Sandusky was giving up his right to a hearing.
The white-haired Sandusky, 67, had entered the courthouse with his wife and 20 supporters. As he left the building, Sandusky said he “would stay the course, to fight for four quarters and await the opportunity to present our side.”
In an hour-long news conference after the proceedings, defense attorney Joseph Amendola said the preliminary hearing would have been one-sided, with no opportunity for Sandusky to discredit the witnesses. In a preliminary hearing, prosecutors need only prove they have a case worthy of being heard in county court.
“That would have left us with the worst of all worlds,” Amendola said.
Instead, the lawyer said he struck a deal with the attorney general’s office to hasten the sharing of evidence. Sandusky also waived a formal arraignment, starting a procedural clock that will allow Amendola to begin preparing Sandusky’s defense sooner.
But Allentown defense attorney John Waldron found Amendola’s move puzzling.
“He’s making all these statements to the national media and indicating that he can’t wait to have his day in court,” Waldron said. “(Yet) when he has his day in court, he waives his opportunity to cross-examine each and every victim.”
The chance to grill witnesses is a valuable opportunity to create a record of all the inconsistencies and questionable elements of a witness’ story for later use at trial, Norristown, Pa., defense attorney John McMahon said.
“Your goal is try and establish credibility problems with these witnesses,” he said.
Outside the courthouse, E. Marc Costanzo, a senior state deputy attorney general prosecuting the case, said Sandusky’s decision kept the 11 witnesses expected to take the stand from testifying twice. The same terms of bail — house arrest with electronic monitoring and strict limits on personal contact — still apply to Sandusky.
Both the prosecution and defense maintain there have been no talks of a plea deal. Amendola said afterward he decided Monday night to waive the hearing and will also skip a Jan. 11 arraignment. Sandusky preemptively entered a plea of not guilty.
The defense lawyer also appeared to give some hint of an eventual trial strategy as he attacked the credibility of Sandusky’s thus-far anonymous accusers, most of whom he says he has identified.
“Many of the alleged victims already have civil attorneys,” he said. “What greater motivation could there be to say ‘I’m a victim’ than money?”
Indeed, Amendola said some of Sandusky’s accusers know one another and may have colluded in their testimony. The lawyer said he plans to subpoena phone and text-message records in an attempt to prove they communicated.
At news of the waiver, some attorneys expressed a measure of relief for their clients. Michael Boni, an attorney for the man identified in a grand jury report against Sandusky as Victim 1, told hundreds of reporters he had dinner with his client Monday night and that the young man was ready to testify.
“I know how stressful it would be,” he said. “It’s good that he won’t have to relive the horror.”
But other alleged victims angrily decried Sandusky’s decision, saying they wanted the chance to tell their side. In a written statement read by his lawyer, Victim 4 said he had been prepared to tell the truth — a word he underlined three times.
“I can’t believe they put us through this until the last second only to waive the hearing,” the statement read. “Regardless of the decision to waive the hearing, nothing has changed. I still will stand my ground, testify and speak the truth.”
Moments after the brief hearing ended, Slade McLaughlin, also an attorney for Victim 1, called the decision to wait until the last minute a publicity stunt.
Kenneth Suggs, an attorney for Victim 6, put his feelings for Sandusky more bluntly.
“I’d call him a coward,” he said. Before Tuesday, speculation centered on which witnesses prosecutors would call, including assistant coach Michael McQueary, who told the grand jury he saw Sandusky sodomize a boy in a locker room shower in 2002.
A source close to the investigation said McQueary would have been called to the stand if the hearing had proceeded, along with eight alleged victims and two Penn State janitors.
Amendola said Tuesday one of the biggest temptations to go forward with the preliminary hearing was the opportunity to question McQueary. He’s staking the credibility of the commonwealth’s star witness as a cornerstone of his case, calling into question whether the former graduate student really told officials what he said he did.
McQueary’s testimony is expected to carry the prosecution’s case Friday in Harrisburg, when former Penn State administrators Timothy Curley and Gary Schultz face a similar hearing on charges they failed to report one of the assaults and then lied to the grand jury about it.
The day after the shower encounter, McQueary reported what he saw to head football coach Joe Paterno, who then spoke to Penn State administrators, according to the grand jury report. Paterno said McQueary only reported seeing Sandusky “fondling or doing something of a sexual nature to a young boy,” according to the grand jury’s summary of Paterno’s testimony.After charges were filed, McQueary sent out an ambiguously worded email that read, “I did stop it, not physically, but made sure it was stopped when I left that locker room.”
Then on Sunday, the Harrisburg Patriot-News reported McQueary family friend Dr. Jonathan Dranov told a state grand jury McQueary said he didn’t see anything sexual when he gave an account of the incident.
Amendola told reporters that if they believed Paterno, Schultz, Curley and former university President Graham Spanier heard word of an assault and merely told Sandusky not to shower with boys, they should “dial 1-800-REALITY.”
The number leads to a gay sex chat line.
Despite falling short of the daylong legal blockbuster many expected, Tuesday still set a surreal scene in the sleepy hamlet of Bellefonte. A small army of broadcast and print reporters from across Pennsylvania and the country set up camp in the main square outside the Centre County Courthouse. Huge TV floodlights competed with the sparkling Christmas bulbs that bedeck the Victorian town center.
Other judges canceled or moved their proceedings from the courthouse for the day. Weeks ago, town officials began meeting to plan for the media crush. Court administrators issued 200 media credentials and set up a public lottery for the remaining seats.
Tom Darr, the deputy court administrator for the Administrative Office of Pennsylvania Courts, said the public cost was minimal. Visiting press paid the cost of security for their satellite and remote facilities, he said.
On the Penn State campus, about 10 miles from the courthouse, students caught in the frenzy of final exams were only distantly aware of the looming preliminary hearing.
But those who followed the story on Twitter and television said they were disappointed to be denied a chance to hear what they want most: answers. In a case that’s spawned as many conspiracy theories and rumors as it has lawsuit claims, clarity is in short supply on campus.
“I’m sure it’s what his lawyer told him to do,” said junior Josh Lorigan of Palmer Township. “I just feel like a lot of facts keep changing about this whole thing. He needs to come forward and tell people what his case is.”
©2011 The Morning Call (Allentown, Pa.)