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Bob Costas’ Sandusky Interview: was it a legal blunder?

The travails of former Penn State coach, Jerry Sandusky, are well known. It seems each week brings more revelations or more fall out. While the University and its former coaches deal with the growing scandal, Sandusky’s attorney, Joseph Amendola has been on the talk show circuit in an apparent attempt to counter the growing public perception that his client is a degenerate pedophile before a jury is even impaneled in his criminal case.

Monday, Amendola shocked the legal community with his controversial, impromptu offer to NBC’s Bob Costas to get Sandusky on the phone during the lawyer’s interview with Costas. What followed was a departure from all conventional legal advice– a client giving a recorded TV interview. It was live, unedited and direct. Costas did not sugar coat his questions, challenging Sandusky on the meat of the allegations that have been made public. Sandusky’s pregnant pause as he contemplated the question of whether he has a sexual attraction to young boys has stirred more debate. Did the interview help him in the court of public opinion? Does it even matter in his defense whether it did or didn’t?

Before the advent of reality legal shows like CourtTV and Nancy Grace, public comments about pending sensational cases were limited to news broadcasts and print media. With Twitter and the increase in televised trials cases have moved from the courtroom to your smartphone and TV screen. There is no denying the power of TV personalities to shape public opinion. How much would Casey Anthony be reviled if not for the constant barrage of opinion on her guilt from Nancy Grace and others on HLN nightly, during and after the trial. Interestingly, however, while they helped shape the post-verdict condemnation of Anthony, their constant rants did nothing to affect the jurors who acquitted Anthony.

So is Amendola’s interview tour the new wave in criminal defense? Having defended notorious cases I can attest that it is a simple task to get a public platform. Broadcast and print media are hungry for any inside information and will always reach out to the lawyers for interviews and comments. It doesn’t take a publicist to seek out journalists. Add to that the allure of being touted in national broadcasts, lawyers hungry for acclaim are easy targets. But there are rules, both written and unwritten, that should govern a lawyer’s decision to speak publicly. Amedola, however, went beyond just providing comment on a pending case, he offered up his client. One would be hard pressed to find support for such a decision among experienced criminal lawyers.

Let’s start with the lawyer’s ethical obligations. Connecticut’s Code of Professional Responsibility provides: “Rule 3.6. Trial Publicity (a) A lawyer . . . shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”

The rule does not mandate silence but circumscribes what is permitted. The balance of the Rule would appear to insulate Amendola to some extent: “. . . a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this subsection shall be limited to such information as is necessary to mitigate the recent adverse publicity.”

Ohio has a similar Code provision. The real question is not whether there has been a violation of an attorney code of conduct, but whether the decision to allow his client to speak publicly is one that an attorney of average competence would make. Here there is a real split. The new age of TV lawyers would probably support the decision if there was something tangible to be gained. Most traditional practitioners would recognize the pitfalls. Amendola had no control over the direction the interview would take. He placed his client at risk that he would make a statement that would further damage his cause. At the very least, he allowed a permanent record to be made that may be admissible at Sandusky’s trial.

On balance an experienced lawyer would weigh the risks versus the benefits from such an edgy play. Given the widespread comments of disbelief following the interview, one is hard pressed to see where they believed there would be an benefit to Sandusky.

Let me know what you think. Post your comments below or send me a Tweet @RichMeehan on Twitter.

Rich Meehan