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. Jamey Carothers

    It is painfully obviously why Sandusky waived his right to a prelininary hearing. Up to this point, Sandusky has controlled the story by going on various interviews. Had the hearing taken place, the victims would be heard- and that is something Sandusky wouldn't want.

    December 13, 2011 at 3:10 pm | Report abuse |
    • ComSenseWiz

      This legal gamesmanship is just a prelude to the inevitable. We'll just have to wait a bit longer for this pervert to get raked across the hot coals. The only variable now is how many more victims come forward before trial. In the mean time, Bubba at the state pen will just have to wax his surfboard awaiting Pedusky's check in.

      December 13, 2011 at 4:13 pm | Report abuse |
  2. Grs

    The reason he waived this portion of the proceedings is simple...when the truth comes out about what he did, there will be no way to stop the outcry of public horror. He's hoping the trial phase will only expose this info for a brief time before he's sentenced.......assuming of course he's guilty (ahhhaahahahahaaa, I almost typed that with a straight face).

    December 13, 2011 at 3:11 pm | Report abuse |
  3. Bill

    The problem with accusations like these is that no hard evidence is needed – unlike any other criminal situation. Any kid who comes up with a half-plausible story is taken as factual and genuine; and since the statute of limitations is long for these crimes, people can come out of the woodwork many years laterfor whatever reason/motivation and everything is virtually accepted as legit!

    December 13, 2011 at 3:11 pm | Report abuse |
    • Um!

      Yes, that was the problem with the poor innocent priests.......

      December 13, 2011 at 4:04 pm | Report abuse |
    • AJM

      I will tell you from experience, that they probably have PTSD. That is why the stories come out much later.

      December 13, 2011 at 4:22 pm | Report abuse |
    • KLP

      Wow, it sounds like someone or perhaps more than one unfortunate child has had to mention your name and consideration has had to take place whether or not their report of YOU was legit or not. Poor, unfortunate individual. Are we supposed to feel pity for the likes of you and Sandusky?

      December 13, 2011 at 4:43 pm | Report abuse |
  4. Portland tony

    Assuming no guilt until proven, where can this guy get an unbiased jury?

    December 13, 2011 at 3:13 pm | Report abuse |
  5. hhi

    This is a joke right...Facing his victims would make him accept the fact that they are indeed victims, and what he did was disgusting at best and criminal.

    December 13, 2011 at 3:14 pm | Report abuse |
  6. vel

    wonder if Sandusky got an incompetent lawyer to then claim it was their fault he was convicted and not his actions?

    December 13, 2011 at 3:24 pm | Report abuse |
  7. PA Lawyer

    In a prior interview, Sandusky's lawyer said that several of the victims would come forward and say Saundusky never touched them (this before they even knew who the victims were, and before Sandusky allegedly tried to contact one of the victims). That never happened. The last few days, the lawyer said victim #2 was going to testify at the hearing that Sandusky never abused him and it's all lies. Again, didn't happen, and instead he waived his right to a preliminary hearing (had the child testified, he could have asked for a dismissal of the charges related to him). What are the chances Sandusky and his attorney are trying to convince/intimidate the victims into recanting, and haven't been successful? Maybe that's why the hearing today was cancelled...the victim they were going to call wouldn't cave, and they would have looked like fools not calling him or if he testified for the prosecution. Just a thought.

    December 13, 2011 at 3:27 pm | Report abuse |
  8. jiffb

    He wanted to avoid the media sh!t storm.

    December 13, 2011 at 3:30 pm | Report abuse |
    • Portland tony

      Actually the less said out of court, the better off Sandusky does. There's a jury pool listening to every thing said. This case is going to be a tough one. No admissible evidence, no video tapes, no smoking gun, just credibility issues and a lot of hearsay. If the defense can prove just a couple of these accusers lied...will the jury let him walk?

      December 13, 2011 at 3:51 pm | Report abuse |
  9. anon

    I think he waived the hearing because he is going to plead out at the last minute.

    December 13, 2011 at 3:39 pm | Report abuse |
  10. JJ

    He was daring his victims to actually show up and his bluff blew up in his face when they all were there, ready to testify. He now realizes he does indeed have to beg for a plea deal. The POS.

    December 13, 2011 at 3:51 pm | Report abuse |
  11. Ross

    If you want more legal analysis a local legal blog provided more reasons http://www.hebetsmccallin.com/blog/should-you-waive-the-preliminary-hearing-a-case-study-with-jerry-sandunsky/

    Basically, they indicate that the defense doesn't get to present evidence in the preliminary hearing, thus it was unlikely Sandusky's lawyers could have made the hearing turn into anything good for him.

    December 13, 2011 at 4:00 pm | Report abuse |
  12. bigwilliestyles

    Or maybe he's still working out 'arrangements' for his silence with the rest of the boy raping cult members; NAMBLA anyone?

    December 13, 2011 at 4:04 pm | Report abuse |
  13. Scottish Mama

    I think if the child raype and molested victims were prepared it would have set them back a little. To be able to get your hopes and nerve up to tell a story of violation of your body would be extremely hard to do, just to have it dashed at the last minute. I see this as another way for Sandusky to control another situation, as most child raypist do to get what they want from the victims.
    I also think the prosecution should get all their victims prepared for court.
    I also think all victims should hold your head high and tell the truth, you have lived it, your truth is your own and you will not be brow beaten for telling a truth. You are the victim, it is not your fault, tell your story.
    I also think people should stand outside the court and support the victims, going inside should be for family members. Telling their truth is hard enough, support of all victims is paramount.

    December 13, 2011 at 4:08 pm | Report abuse |
  14. Amac

    Whatever happened to innocent until proven guilty?

    December 13, 2011 at 4:09 pm | Report abuse |
    • Gary

      That is for purposes of the trial only I belive. If I see somebody commit a crime, they are guilty.

      December 13, 2011 at 4:19 pm | Report abuse |
  15. Red Dawg

    People love a circus, don't they? But, I've got other things to do. The only thing I'm looking forward to is a long torturous life of prison justice for Sandusky and a brutal end.

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