As the Jerry Sandusky trial moves through more days of sordid testimony from an array of claimed victims, the question lingers: what does Sandusky have to gain from this trial? The weight of accusations from 8 accusers certainly appears to doom the beleaguered former coach. If this tidal wave of evidence is methodically drowning him why did Sandusky put himself through this?
The short answer is: because he has the right to under the Constitution. The Fifth Amendment grants him, and every other defendant, the right to due process of law. Those rights are more clearly spelled out in the Sixth Amendment. He has the right to a public trial with the assistance of counsel. More importantly, that amendment grants him the right to confront and cross examine his accusers.
But does a criminal defendant exercise those rights in a seemingly un-winable case? It happens frequently in our courts. The decision whether to seek a trial or resolve the case through plea negotiations often turns on the offers being made by the prosecution for resolution. In sexual assault cases defendants are offered a premium if they are willing to forgo trial for a guilty plea. The prosecution is always driven, foremost, by consideration of the victims. Sparing young victims the ordeal of public testimony will generally earn most defendants consideration in sentencing.
There are cases, however, where the prosecution offers are so high that the defendant has little choice but to put the case to its proof. In the instance of a 68 year old believed to be a serial predator significant incarceration would accompany any plea bargain offered. For that defendant there is little difference between accepting a lengthy jail sentence on a guilty plea and being sentenced to a greater term after trial.
How much consideration could the Sandusky prosecutors offer to induce a plea to spare the accusers? With eight young men claiming multiple assaults any offer, had one even been made, would lead to a jail sentence that in our business we describe as “telephone numbers” that is, it’s made up of a lot of digits.
Another consideration for the defendant in a case like this, where proof seems so overwhelming, is to spare his family the ignominy of a public trial. That doesn’t appear to have been a motivating factor.
Defense lawyers also play a major role in this decision. Pity the defendant whose lawyer is so enamored with the prospect of trying a sensational case that he encourages a trial even though it is not in the client’s best interests. I am not suggesting that this occurred in Sandusky’s case but there is a seduction for lawyers to seize an opportunity to perform on a national stage. The allure of the cameras and the prospect of pulling off the major upset, like Casey Anthony, can sometimes overcome a lawyer’s best judgment.
Like patients seeking medical care for a serious ailment, defendants look to us for any sign of hope or chance that they can avoid prison. The over confident lawyer, or the lawyer motivated by self interest, can easily sway that person into a trial.
The former federal Public Defender in Chicago, Terry McCarthy, is renowned among lawyers for his lectures on the art of cross-examination. In one of his lectures that I have seen he discusses the task of a lawyer required to take to trial the seemingly un-winable case. He calls it “playing for the fumbles”– a fitting football analogy in this case. It means hoping that through some act of serendipity a mistake is made or a witness unravels and the losing cause is suddenly won. We don’t keep won/loss records in our business. If we did it would be interesting to see how many “fumbles” actually have occurred that led to surprise acquittals. I wouldn’t bet on that, just like I wouldn’t bet on Sandusky’s chances in this one.