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. tekbit

    On another note, I have no problem with ESPN airing Penn State Games from the past years, yet I do hope they have the Political Correctness to at least not air those games in which they came from behind......

    December 13, 2011 at 5:58 pm | Report abuse |
    • Daniel

      Not funny...

      December 13, 2011 at 6:30 pm | Report abuse |
    • TooSoon

      Really? Just really??

      December 13, 2011 at 6:31 pm | Report abuse |
    • asdf

      hahaha, I thought it was funny.

      December 13, 2011 at 6:40 pm | Report abuse |
    • Sarah Conner

      I checked with TBS. It's definitely funny! Very funny! Well done Tekbit!

      December 13, 2011 at 6:43 pm | Report abuse |
    • Phil McCracken

      Somewhat funny in a sick, twisted way.

      December 13, 2011 at 6:52 pm | Report abuse |
    • bobo

      From what I've gathered, some "ball boys" are dissatisfied with their jobs. Find another job then!

      December 13, 2011 at 7:06 pm | Report abuse |
    • Bugs Ears

      Funny? NOT!!!! You SICK phuck

      December 13, 2011 at 7:30 pm | Report abuse |
    • Layne

      Not funny.

      Hilarious, actually. Way beyond funny.

      December 13, 2011 at 7:59 pm | Report abuse |
  2. RebelWithaCause

    One reason, is speed to trial. He doenst want any more young men coming forward. And the move caught prosecutors off-guard. Sandusky likely told his lawyers all the gory details anyway. Why have it publicized? But if more details got publically reported, he could have argued a change in venue.

    All in all, this case may be tough to prove, beyond a reasdonable doubt, without hard evidence and based on verbal testimonies from years ago when the now young men, were just boys. A good defense attorney may beat this....ala OJ, Casey, etc.

    December 13, 2011 at 6:32 pm | Report abuse |
    • GetReal

      Sadly, I think you hit the nail smack on the head.

      December 13, 2011 at 6:45 pm | Report abuse |
    • Pedro

      The accused is obviously in denial. Where there's smoke, there's fire I always say. If one young man came forward, maybe he's a liar, but when ten victims come forward, then the story is entirely different. If he walks, the DA should be fired.

      December 13, 2011 at 6:48 pm | Report abuse |
    • MikeB

      Then, you need to do some reading about hysteria. In Salem, Massachusetts lonely old women were hanged or burned to death because of "dozens" of accusations. Update that with Homeland Security and people seeing "terrorists" around every corner, "terrorists: taking pictures of buildings in New York or Washington (who turned out to be tourists), etc. Hysteria is a dangerous thing and it is commonly missed by "those in authority" for all kinds of reasons and by the greedy, the jealous, twisted individuals seeking their 15 minutes of fame... Sit back and watch. None of us has any idea at all of what the truth is.

      December 13, 2011 at 7:22 pm | Report abuse |
    • Bryan

      Valid points......BUT.....there's dozens of victims, at least 9 are testifying, not to mention McQueary's testimony and possibly the janitor's. The jury is going to think this is some big conspiracy by ALL of those people? What's in it for them? Public embarassment and reliving all the sordid details? Sandusky's done.

      December 13, 2011 at 8:11 pm | Report abuse |
  3. mdmooser

    My friend is covering this in Belfont today. This is not a joke do you know what is right at his house? An elementary school. Why would a (suspected) child molester live near an elementary school? If he got off the charges I cannot imagine someone wouldn't come at him. What a mess. Someone who works with young children and apparently has been a wolf in sheep's clothing.

    December 13, 2011 at 6:46 pm | Report abuse |
  4. Pedro

    If he was only "horsing around" he has nothing to fear, howevever, if he is a serial child molester, give him a fair trial then lock him up and throw the key away.

    December 13, 2011 at 6:46 pm | Report abuse |
  5. MikeB

    Then, again, and I have no idea, he might just be completely innocent. The hysteria, in recent days, has generated these sorts of claims by the hundreds. It's like a dam bursting, maybe a whole bunch of genuine victims coming forward, or it might just be a whole bunch of flakes and money grubbing parasites climbing out of the woodwork We saw the same thing with Cain, Clinton, the various Kennedy's, etc.

    December 13, 2011 at 6:48 pm | Report abuse |
    • candlegal

      Think about it, why would these young men come forward and make themselves known. It is an terrible secret that their families, friends, possibly their children and the world will know about them. How would like to explain this to your family? I think that they are heros for gathering the courage to dreg up this awful past and hope that the public will support them as they continue their path to healing, finally.

      December 13, 2011 at 7:57 pm | Report abuse |
  6. bobo

    I'm glad Jerry is finally getting his day in court. Jerry's attorneys are going to rip his accusers a new one!

    December 13, 2011 at 6:59 pm | Report abuse |
    • DJ

      That's right!

      December 13, 2011 at 7:34 pm | Report abuse |
  7. tekbit

    Of course Jerry is innocent. It's all inuendo, right?

    December 13, 2011 at 7:15 pm | Report abuse |
  8. Jim

    The article provides a good analysis. I would correct one thing, though: defendants do indeed get charges dismissed at preliminary exams. It is rare, but it happens. The hearing can also result in a reduction of charges to be tried, or dismissal of some counts in a multi-count prosecution. Nonetheless, I agree that the slim chance of success for the defense is outweighed by the other factors stated in the article – and especially the risk of a higher bond if the gruesome details of a crime are brought out in the preliminary stages of the case.

    December 13, 2011 at 7:28 pm | Report abuse |
  9. RM

    " Jerry's attorneys are going to rip his accusers a new one!" Um, seems to me that is allegedly what Jerry may have already been doing, now he needs help?!

    December 13, 2011 at 7:32 pm | Report abuse |
  10. Alex

    Are we prepared for the possible outcome of a not guilty? I mean, I think we all have that gut feeling this guy is a guilty pervert and should be locked up for a long time. However, it sounds to me like there's a huge lack of physical evidence. There's a lot of testimony, sure, but is that enough to move the case beyond reasonable doubt? I'm no legal expert, but this doesn't seem like a for-sure conviction.

    December 13, 2011 at 7:37 pm | Report abuse |
  11. Joe

    Who wants to get a Rusty Sandusky? I'm giving them out for free!!!!

    December 13, 2011 at 7:44 pm | Report abuse |
  12. Joe

    Do you think Jerry called all his kids "Little Squirts"?

    December 13, 2011 at 7:45 pm | Report abuse |
    • candlegal

      Gross, what a perverted thought!

      December 13, 2011 at 7:58 pm | Report abuse |
  13. Jim

    The judge would be very reluctant to accept any plea deal if the defense already dragged the victims into court and further traumatized them by grilling them on the witness stand. They are hoping no more victims come forward, and this move may prevent other boys from being courageous enough to disclose. The defense is playing for a plea deal. He would probably accept 10-15 years in exchange for no trial. If the victims testify in open court, he's gone for life.

    December 13, 2011 at 7:51 pm | Report abuse |
  14. CNNReaderCNN

    Maybe Sandusky will enter a plea deal requesting to be incarcerated in a juvenile correctional center ...

    December 13, 2011 at 7:58 pm | Report abuse |
  15. newsbuff

    It's not reasonable to believe these ten young men conspired to lie about Sandusky.A jury won't believe they did either.
    Prosecutors probably have more evidence than is publicly known.Sandusky's atty will seek a plea bargain here and the resulting sentence will be at least 20 years.

    December 13, 2011 at 11:45 pm | Report abuse |
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