Why would Sandusky waive preliminary hearing?
Jerry Sandusky arrives at court Tuesday in Bellefonte, Pennsylvania, before waiving his preliminary hearing.
December 13th, 2011
02:54 PM ET

Why would Sandusky waive preliminary hearing?

Former Penn State University assistant football coach Jerry Sandusky on Tuesday waived his right to have a preliminary court hearing on allegations that he sexually abused boys, giving up an opportunity for his defense team to test any weaknesses in the prosecution’s case before trial.

Instead, Sandusky pleaded not guilty to all charges and requested a jury trial. He remains free on bail pending that trial.

The preliminary hearing, which was supposed to determine whether prosecutors have enough evidence to take the case to trial, was to offer the first glimpse of what the accusers have to say beyond what was contained in a grand jury's initial 28-page presentment. Prosecutors were prepared to put 11 witnesses on the stand Tuesday.

Because defense attorneys often use the hearings to probe for inconsistencies in witness testimony or other weaknesses in the case, a natural question emerges: Why would he waive the hearing?

CNN legal analyst Paul Callan speculated on one reason Tuesday: Press coverage of graphic testimony could have been more bad publicity for Sandusky, making any future plea deal, should the defense decide to pursue one, impossible. But he and CNN legal analyst Jeffrey Toobin disagreed on whether the decision was smart.

Sandusky’s attorney gave his own reasons for the move. The following is the attorney’s explanation, followed by Callan’s and Toobin’s reactions:

REASONS SANDUSKY’S ATTORNEY GAVE FOR THE MOVE

– No ability to challenge witnesses’ credibility: Sandusky attorney Joe Amendola said that in pre-hearing discussions he had with the prosecution Monday, prosecutors indicated that they would object to any attempt by Amendola to question witnesses’ credibility. And because the prosecutors could correctly do that during this hearing, Amendola decided the hearing would be nearly useless for the defense, he said.

“(This) would have left us with the worst of all worlds: We would have heard a recitation of the allegations without realistically being able to cross-examine the witnesses who testify as to their credibility. And as all of you know, credibility is going to be the main factor in this case,” Amendola said. "Credibility is … a measure which we can address at trial but we could not have addressed today.”

– Amendola got concessions, including no bail increase: Having determined the hearing wouldn’t let him cross-examine usefully, and not believing that a judge would toss the case (saying Pennsylvania’s threshold for prosecutors showing cause for a trial is low), he asked prosecutors Monday what they would concede if Sandusky decided to waive Tuesday’s hearing.

Amendola said the prosecution – having threatened earlier to seek an increase in Sandusky’s bail – agreed that they would keep bail where it was.

The prosecution also agreed “to address our pretrial discovery needs and requests in a reasonably fast way so that we can analyze that material more quickly and properly prepare for a trial,” Amendola said.

– Why the decision was announced Tuesday instead of earlier so the witnesses would have been spared a trip to court: Amendola said he told the prosecution Monday night that Sandusky would waive the hearing and that witnesses didn’t need to show up Tuesday. But the prosecution was “concerned that (Sandusky) might change his mind,” Amendola said.

“I told the commonwealth attorney last night he could call off his witnesses. And he chose not to do so, and I understand that, because if Jerry had come into court today, even though we agreed late last night to waive this hearing, then he would have been stuck with no witnesses,” Amendola said.

Amendola said Sandusky’s decision came Monday and not earlier because “we did not have meaningful discussions with the prosecution until (Monday) afternoon.”

WHAT LEGAL ANALYSTS SAY

Callan, a defense attorney and former prosecutor, said he believes that even if Amendola couldn’t call witnesses’ credibility into question at the hearing, he gave up a prime chance to test the prosecution’s case.

“This was the golden opportunity to look at the case, to see how strong the witnesses are, to probe and find out where the flaws are, and in fact if there is no case, it would be readily apparent at a preliminary hearing,” Callan said.

“You can’t do a full cross; (Amendola) is right about that,” Callan said. “He said you can’t attack their credibility. If they were a drug addict or something, you couldn’t bring that out. But you certainly could go after them on the story and whether the story is consistent. He gave that opportunity up today, and I’m very, very surprised at that strategic maneuver.”

Callan said he suspects that Amendola and Sandusky waived the hearing because they were “afraid the testimony of these alleged victims would be so absolutely gut-wrenching and there would be public revulsion and that the atmosphere would turn even more hostile to Jerry Sandusky than it already is.”

But more details still may come out before trial, Callan said.

“Instead of having a splash over the next two days and then a lot of stories this week and then the thing fading for a while, now you’re going to have a series of long, slow leaks from all 10 victims and their attorneys as they step forward and say, ‘This is what happened to my client,’ ” Callan said.

Callan gave one other reason a defense attorney might waive a preliminary hearing: a defense attorney’s belief that he can get the case to trial before the prosecution is ready.

“In the rare cases that I’ve seen in the past where a defense attorney has waived a preliminary hearing, it’s usually (a move to) ambush the prosecutor and move to trial quickly because the prosecutor is not ready. You’ve got a lot of victims in this case, a lot of potential witnesses in this case, so this could be a ploy to ambush and move quickly,” Callan said.

CNN legal analyst Jeffrey Toobin said Tuesday that he believes the defense’s waiver “is a very smart decision on their part.”

“(In) preliminary hearings in basically any state, including Pennsylvania, the defense never wins. They never get the case thrown out,” Toobin said. “Now, in ordinary circumstances, they use the preliminary hearing to test the prosecution’s case, maybe see where the weaknesses are, doing some cross-examination.

“But in this case, it would have resulted in a storm of more bad publicity for Sandusky. All of these alleged victims testifying in public for the first time … that would have been a disaster, and he would have lost anyway. I think it was smart to just waive the hearing and move on.”

HLN's Ryan Smith: Why would Sandusky waive?

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Filed under: College football • Crime • Football • Jerry Sandusky • Penn State • Pennsylvania
soundoff (84 Responses)
  1. M J

    He waived prelim because it is the only reasonable course to take. It avoids having all the witnesses testify, then be interviewed and examined by the media which will taint the juror pool and make it impossible to have a fair trial. Too many of those accused are convicted by rabid folks whipped up by breathless media. This is the United States of America where the citizens are guarateed that they will be considered innocent until the EVIDENCE presented in a court of law and weighed by a jury of their peers establishes beyond a reasonable doubt that they are guilty.

    December 13, 2011 at 4:11 pm | Report abuse |
    • cyclobrown

      the law considers him innocent. i consider him a pos. any questions?

      December 13, 2011 at 5:12 pm | Report abuse |
    • GB

      Cyclobrown ... even though this is a sad case, your comments are kind of chilling. It is important what the law thinks about Sandusky. Otherwise we could be like Saudi Arabia where there is no written criminal code and people could be executed on a whim. If Sandusky isfound guilty, then the law along with the rest of us can deem him a pos. Until then, he has rights. W/o them we would devolve into mob rule.

      December 13, 2011 at 5:39 pm | Report abuse |
    • sean

      So, if I see someone stealing from a store, I should assume I didn't see it until the trial. Got it. I don't know about you, but I would find it lovely to lie about being molested.

      December 13, 2011 at 6:48 pm | Report abuse |
  2. Nurse143

    he simply wanted to continue to control the story plus avoid any testimony that might get his bail revoked – now he can be home for Christmas before the trial. And all of this baffling drama adds to the possiblity fo getting his counsel declared incompetent when an appeal becomes necessary.

    December 13, 2011 at 4:26 pm | Report abuse |
  3. JJ

    For those of you who keep harping on where can he get a fair trial and unbiased jury, remember Casey Anthony. It was 24×7 coverage for 2 years and she walked. For some jurors, if they didn't witness the act with their own eyes then no evidence to suggest otherwise will do. If he takes it to trial he'll beat the whole deal I predict.

    December 13, 2011 at 4:35 pm | Report abuse |
    • Portland tony

      Especially if some of the accusers are impeached or proven unreliable by defense.

      December 13, 2011 at 4:55 pm | Report abuse |
  4. GrogInOhio

    Let's expect a plea deal. Sandusky will NOT want the victims to testify in open court. IMHO, the prosecutors have the advantage and a LONG prison sentence will result.

    December 13, 2011 at 4:36 pm | Report abuse |
  5. DYBO

    He knows his goose is cooked and will make an Alfred plea where he does not have to admit guilt but acknowledges he can not win the case. I can't help but look at his wife in this picture and wonder if she ever heard the screams of young boys coming from the basement while she was home upstairs.

    December 13, 2011 at 4:44 pm | Report abuse |
    • GB

      *Alford plea

      December 13, 2011 at 5:43 pm | Report abuse |
  6. THErapist

    Sandusky will win

    December 13, 2011 at 4:48 pm | Report abuse |
    • Chris

      Already lost and a looser that is branded.

      December 13, 2011 at 6:00 pm | Report abuse |
  7. Chris

    He's a sick puppy so it seems, and may go for some mental disability plea of sorts? Either way would not let my family near the guy.

    December 13, 2011 at 4:53 pm | Report abuse |
    • cyclobrown

      i will admit when he speaks he sounds just like some musclehead goober jock that thought knocking around others was just bein Gerry

      December 13, 2011 at 5:16 pm | Report abuse |
  8. Lilguy

    The defense was able to test whether the prosecution really had witnesses who were willing to testify in this case by seeking and then turning down a preliminary hearing.

    Now the defense knows it has a tough fight on its hands because the witnesses were all prepared to step up.

    December 13, 2011 at 5:09 pm | Report abuse |
  9. Alex

    Why is Sandusky already treated as guilty? Oh come on . Remember an eye witness is already discredited by another. The case is too complex to judge now. Another DSK or Totmom case? I am horrified now.

    December 13, 2011 at 5:13 pm | Report abuse |
    • BMcGee

      Because there are multiple eyewitnesses,not just one, and that one has not been discredited as of yet. There is a public record of inappropriate behavior with juveniles, resulting in police reports and confessions, and banning him from a high school campus. He even was turned down to volunteer at a small PA university because of his past record, and went ahead and asst. coached anyway. He cannot keep himself away from children.

      December 19, 2011 at 12:59 pm | Report abuse |
  10. RP

    My opinion is that 99.9 % of the public could care less about the Sandusky situation and wishes that CNN would report harder news like they use to be known for.

    December 13, 2011 at 5:16 pm | Report abuse |
    • cyclobrown

      your opinion is crap in this case

      December 13, 2011 at 5:17 pm | Report abuse |
  11. drewcanada

    the analysts also said casey anthony would get off. So in short the analysts don't know jack! GET NEW ANALYSTS!

    December 13, 2011 at 5:24 pm | Report abuse |
  12. Jake

    What if this is not true? How can he defend himself? If true why did these boys wait so long to tell the story? Too many whys here for me. Or maybe the families of the boys/men are just after money.

    December 13, 2011 at 5:24 pm | Report abuse |
    • sean

      Ever been molested? I have, and it's not something I care to relive. It's embarrassing and it makes you feel weak. As football players, it would be awfully hard to quint admit being weak. Funny that concern about a coach's innocence means you can call his many accusers liars.

      December 13, 2011 at 6:55 pm | Report abuse |
    • Donna

      Jake I had not thought about it that way. Maybe the guy is completely innocent. How will he prove it? If these boys had a grudge against him and they all teamed up it could screw up the rest of his life while they sue his estate. If it happened why did they not speak out immediately? That is the part I don't understand.

      December 13, 2011 at 7:20 pm | Report abuse |
    • Jake

      sean that still is not proof that he did anything. I don't go for the being seen as weak. That does not hold water. Being molested does not make anyone weak but it should give them more reason to speak out. Speaking out would make them appear strong. They will have to find a witness or something – in something as horrible as this there has to be evidence. As someone said what if they are paying him back for things done other than molesting them? Has happened before.

      December 13, 2011 at 7:26 pm | Report abuse |
  13. drewcanada

    wouldn't get off meant to say

    December 13, 2011 at 5:25 pm | Report abuse |
  14. joey

    i wonder if the 10 yo boy waived the ky jelly ?

    December 13, 2011 at 5:44 pm | Report abuse |
  15. Joey Isotta-Fraschini

    That's the original Joey at 5:44, not JIF.

    December 13, 2011 at 5:55 pm | Report abuse |
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