Dec. 12 (Bloomberg) -- The evidence prosecutors have laid out against former Pennsylvania State University assistant football coach Jerry Sandusky, who is charged with sexually abusing 10 boys, may make a plea bargain more probable than a trial, according to lawyers who have followed the case.
The testimony of multiple victims telling similar stories of abuse may force a deal, said Lisa Friel, former chief of the sex crimes unit in the Manhattan district attorney’s office. Pennsylvania prosecutors are set to present much of their case against Sandusky tomorrow when he appears for a preliminary hearing in Bellefonte. Some or all of Sandusky’s accusers will testify at the hearing, according to lawyers in the case.
“Sandusky might try to cut his losses and work out some deal that potentially gets him out of prison while he’s still alive,” said Friel, who spent almost three decades in the D.A.’s office. Such a deal may also be appealing to the state as it would avoid the cost of a trial and further publicity for the alleged victims. Sandusky, 67, has denied any wrongdoing.
He was charged Nov. 5 with 40 counts related to the alleged molestation of eight boys from 1994 to 2009. He was rearrested last week and charged with additional crimes after two new accusers came forward with allegations of abuse occurring in the same period. Of all the counts against him, nine are for involuntary deviate sexual intercourse, according to court documents.
Sandusky posted bail and is under house arrest until the hearing. His attorney, Joseph Amendola, said his client isn’t considering a plea bargain.
“We are staying the course and proceeding with the preparation of Jerry’s defense,” Amendola said in an e-mail.
Wes Oliver, an associate law professor at Widener Law School’s Harrisburg campus, said Sandusky’s best chance is to cast enough doubt on enough witnesses to force the prosecution to consider a plea deal.
“They’re posturing right now that they’re preparing for trial, but my guess is that they’re looking for a plea,” Oliver said of Sandusky’s defense.
The Sandusky case has garnered worldwide attention because of his ties to Penn State and legendary football coach Joe Paterno. The case has led to the firings of Paterno and university president Graham Spanier amid criticism that they didn’t do enough to stop Sandusky.
Paterno and Spanier weren’t charged with any criminal wrongdoing. Two other Penn State officials, athletic director Timothy Curley and former vice president Gary Schultz, were charged with perjury and failing to report allegations of child sex abuse against Sandusky. They’re scheduled to appear in court later this week.
Sandusky might as well contest the charges because his age puts him in a position where any plea deal would amount to a life sentence, said Jack McMahon, a former prosecutor in the Philadelphia district attorney’s office.
“What has he got to lose?” McMahon, who spent 12 years in the district attorney’s office, said in a phone interview. “To me it takes a lot of choices out of it.”
Sandusky also deserves his day in court, McMahon said.
“Somewhere along the line we’ve lost the concept that Sandusky is innocent until proven guilty,” he said. “It just seems extraordinarily unfair that he has been put into the position of a demon without any judicial finding at all. It’s un-American.”
Prosecutors have portrayed Sandusky as a serial child molester who used a charity he founded for needy children to recruit his victims, befriending them and “grooming” them with gifts, trips to Penn State football games and money prior to the molestation.
The incidents allegedly took place in the basement of Sandusky’s home, in hotels and in locker rooms on Penn State’s campus.
One accuser, identified as Victim 9, testified that Sandusky assaulted him as a child on numerous occasions in a basement bedroom. Sandusky allegedly attempted to engage in anal penetration of the victim on at least 16 occasions, according to a report by a grand jury convened to investigate the matter. The victim, who met Sandusky in 2004 when he was about 11 or 12 years old, testified that on at least one occasion he screamed for help knowing that Sandusky’s wife was upstairs, and no one came, according to the report.
Dorothy Sandusky said in a statement last week that the allegations against her husband are false.
A key element of the prosecution’s case is an eyewitness account of a late-night assault that allegedly occurred in March 2002 in the locker room of the Lasch Football Building on the University Park campus. Penn State assistant football coach Mike McQueary, then a graduate assistant, testified to the grand jury that he saw the former coach having anal sex with a boy in the shower at the football team’s headquarters.
McMahon, the former Philadelphia prosecutor, said he sees at least one difficulty for prosecutors in obtaining a conviction Sandusky. McQueary’s testimony could become a hurdle because it isn’t believable that he witnessed something as shocking as the anal rape of a child and did nothing to intervene, said the lawyer.
McMahon, now a defense attorney, represents Kermit Gosnell, a West Philadelphia doctor accused in January of performing illegal late-term abortions.
“It’s hard for me to imagine that he saw anal rape and did nothing,” McMahon said. “It’s more consistent that he saw inappropriate behavior and that’s why he didn’t interrupt.”
Consistent With Testimony
Oliver said the gist of what McQueary claims he saw is consistent with the testimony from alleged victims. Inconsistencies in McQueary’s testimony may be more of an issue in the perjury case against Schultz and Curley, where precision in language is important, Oliver said.
Pennsylvania is one of only two states, along with Connecticut, where a preliminary hearing operates more like a trial, as prosecutors must present enough evidence to show there is probable cause that the crimes occurred.
In both states, grand jury findings aren’t presumed to be conclusive and a judge has to determine whether the case should be held for trial, Oliver said. Prosecutors in these two states also don’t have the benefit of using a grand jury as a backstop for an indictment should a judge find there is insufficient evidence for trial.
“In Pennsylvania and Connecticut the prosecution is less willing to risk an incomplete case at the preliminary hearing,” Oliver said. “You have to hear testimony related to all victims.”
‘Get a Shot’
Sandusky’s lawyer will probably use the hearing as his first chance to “get a shot at” victims and find holes in their stories, said Tariq El-Shabazz, a Philadelphia defense attorney.
“Defense attorneys use this to poke holes, to find out if you have eight victims giving a similar story because they were prompted by the same detective,” El-Shabazz said in a phone interview. “You get situations where people are mimicking what the sex crimes officers are asking them.”
Sandusky’s lawyer could also use the hearing to get early discovery, or evidence, on each victim, Friel said.
The prosecution must “create consistencies between what gets said at the preliminary hearing and what is said at trial,” Friel said. “Human beings never tell a story the same way twice and that’s the biggest risk for the prosecution.”
The case is Commonwealth of Pennsylvania v. Sandusky, MJ- 49201-cr-0000636-2011, Magisterial District Court 49-2-01, Centre County (State College).
--Editors: Peter Blumberg, Glenn Holdcraft
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