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.”