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The Sandusky Case: Secrecy and Silence Are a Child Predator’s Best Friends, but Other Events the Same Day Show That Soon Our Justice System Will Reveal the Truth

This Tuesday, December 13, the national media gathered en masse in the quaint, small town of Bellefonte, Pennsylvania, for a preliminary hearing in the case of accused serial pedophile Jerry Sandusky.

The Court of Common Pleas courtroom was relatively simply appointed, except for the beautiful gold-leaf filigree on the ceilings.  It was packed with 100 journalists, including myself, and 100 members of the public, who had gained admission through a lottery system.  Also present were family and friends of Sandusky and, presumably, families and friends of the 10 survivors who have been named in a grand jury indictment, and their attorneys.  Out front were rows of satellite trucks, camera and tech folks, and even more reporters facing the courthouse, where a lonely podium and microphone awaited the end of the hearing.  The hearing was expected to last all day and even into the evening hours.

The podium and microphone were in use long before intended, however, for Sandusky waived his right to a preliminary hearing within two minutes of the hearing’s being called to order by the judge.  In this column, I’ll discuss why he may have made that choice, and cover a few welcome recent developments that signal progress in the war against child sex abuse.

Why a Preliminary Hearing Likely Would Have Harmed Sandusky More Than It Could Have Helped Him

The purpose of a preliminary hearing in a criminal case is to give the defense a peek at the prosecution’s evidence before the case proceeds on to the defendant’s arraignment, his plea, and, if he pleads “Not guilty”—as Sandusky did—his trial.  Most defendants waive the preliminary hearing because they already have a strong sense of what the government knows.  In Sandusky’s case, it would have made no sense at all for him to have a preliminary hearing, because the government’s case had already been documented, in a published grand jury report.

Moreover, in Sandusky’s case, a preliminary hearing was far more likely to be useful to the prosecution than the defense.  Imagine the cumulative effect of having 10 survivors testify in succession—with each describing Sandusky as employing similar grooming patterns; having the same age preference for each boy; and following the same modus operandi (such as locating boys through his charity, Second Mile).

What observer, walking out of such a hearing—where the survivors are unrelated, and obviously not in collusion—could conclude anything other than that Sandusky is a compulsive, serial child rapist?

An Unfortunate Consequence of Sandusky’s Waiver of the Preliminary Hearing:  Silencing the Victims Once Again

Having gathered the world’s media together, Sandusky waived the preliminary hearing at the very last moment.  Thus, the event that was supposed to last all day, and even into the night, ended abruptly.  Reporters rushed outside, and an Assistant Attorney General, standing at the podium in front of the courthouse, said what everyone must have been thinking:  This was a great day for the state, which—thanks to Sandusky’s waiver—did not have to divulge any evidence that had not yet been revealed in the grand jury report. 

However, it was not such a good day for the victims who had steeled themselves to testify for the first time openly, in public.  In effect, Sandusky had silenced them and victimized them once again.  (I call them victims, rather than merely accusers, because I believe that it would be virtually impossible to get this many men to testify falsely to a grand jury—where the penalty for lying is perjury—that they had been sexually violated as boys.  That is simply ludicrous, though Sandusky’s attorney keeps trying to attack the victims in public every chance he gets.)

According to the grand jury report, Sandusky first damaged these men when they were boys, through the alleged abuse, which surely led them to question themselves and their place in the world.  They were damaged again when their calls for help were ignored, whether it was in Sandusky’s house or when members of the Penn State or Second Mile community saw them with Sandusky.  With his last-minute waiver of the hearing, he damaged them yet a third time, by allowing these men to prepare for the most difficult day of their lives and then unilaterally cutting them off.

Before the hundreds arrived in Bellefonte, Sandusky gave two heavily publicized interviews in which he admitted to behavior with children that any normal adult would know is inappropriate.  When one adds his waiting until the ultimate moment to waive the hearing to these interviews, it is obvious that the Sandusky team wins the prize for callousness.

Sandusky’s Attorney’s Deeply Unpersuasive Theory of the Case

Surely, the Sandusky team must have made the decision to waive the preliminary hearing well before that morning.  So why not tell the hundreds headed to Bellefonte that no hearing was to be held?  Who knows what they were thinking, except that after the hearing was derailed, it turned into the biggest press conference imaginable for Sandusky’s attorney.  He informed the judge of the waiver, and while everyone went outside, he took Sandusky to his arraignment, where he entered a plea of “not guilty.”  Then his attorney returned—without Sandusky—to the podium to hold forth for an hour.

Based on those remarks, the gist of Sandusky’s theory of the case is as follows:  These 10 victims came forward in order to get money.  He said it repeatedly.  Sandusky’s attorney did not explain how they were going to get money by sending Sandusky to jail.   Nor did he mention that none of them has filed a civil case for damages.  So when does a defense attorney attack the victims?  When he is struggling to defend his client.  It was one of the most despicable displays I’ve ever seen by a defense attorney in a child sex abuse case.

In the end, though, Sandusky did not truly succeed in silencing the victims yet again.  This is a criminal trial.  Their stories are already in a grand jury report, which gives them tremendous credibility.  And if there is a trial (and not a plea), they will finally be allowed to do what they could not do on Tuesday:  Testify, one after the other, piling fact upon fact, to show that the allegations against Sandusky are true, and are despicable enough to be worthy of putting him in prison for life.  Even better, if Sandusky enters a plea, they will then be able to speak publicly where and when they choose.

Other Developments on the Same Day:  A Defamation Suit by Survivors, and Congressional Hearings on Sex Abuse Reporting

The pace of change in favor of child sex abuse victims is increasing.  Also on Tuesday, a defamation lawsuit was filed against Syracuse men’s basketball coach Jim Boeheim.  Boeheim had said that two alleged sexual abuse victims of Boeheim’s longtime assistant, the now-fired Bernie Fine, were in it for the money (yes, there is an echo here), and were liars.  He then said, after the university fired Fine, that maybe he spoke too quickly, but, hey, Fine was a long-time friend and he’d say it again under the same circumstances.  Then he kind of apologized.

Then the authorities rebutted Boeheim’s charges, confirming for the public that the two men were credible, and that, but for the statute of limitations, they could have pressed charges.

Because of New York’s backward and restrictive statutes of limitations, most victims cannot press charges in that state.  For a while, therefore, it appeared that these men would be silenced first by a premiere college basketball coach and then by New York state law.  But then they filed this defamation case against Boeheim and Syracuse, and the tables were turned.

The defamation suit filed Tuesday was a new case of David suing Goliath, and another indication that the tide is turning in America when it comes to child sexual abuse.  Here, the victims were suing the very powers that had tried to silence them!  It was so refreshing after Sandusky had momentarily silenced his 10 accusers that morning.

The same day, moreover, there were hearings in the House on a bill that would require states to enact mandatory sex-abuse-reporting laws or lose federal funding.  Hallelujah!  It turns out the federal government does care about the victims of child sex abuse.  Who knew?  They have been as silent as a tomb for the entire 10 years since the Boston Globe broke the story of the top-down cover-up of abuse in the Catholic Church.

If the legislation passes, the power will start to shift to the side of the victims, and away from the perpetrator, as it should be.

My one concern about the federal bill is that religious groups inevitably will ask for an exemption from mandatory reporting, as they have often done in the past.  That is a very bad idea, because it will leave children at serious risk even when adults who are in positions to protect them know about the abuse.  Such a request is immoral and should not be codified, especially at the federal level.  Many states include clergy as mandatory reporters, which anyone with common sense and a real intent to protect children knows is the right answer.

All in all, Tuesday was a great day for victims.  Really, Sandusky’s waiver is an implicit concession of the strength of the government’s case against him.  The Syracuse lawsuit shows victims who just won’t take it anymore.  And the federal government is awakening to use the power of its purse to help in this fight.

These three events, taken together, show that we, as a nation, are moving toward the protection of children, and away from a world that has permitted abusers to molest the next victim because no one protected the one before him.

Marci A. HamiltonMarci A. Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, and the author of God vs. the Gavel: The Perils of Extreme Religious Liberty and Justice Denied: What America Must Do to Protect Its Children. She also runs two active websites covering her areas of expertise, the Religious Freedom Restoration Acts, www.RFRAperils.com, and statutes of limitations for child sex abuse, www.sol-reform.com. Professor Hamilton blogs at Hamilton and Griffin on Rights. Her email address is hamilton02@aol.com.
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3 Responses to The Sandusky Case: Secrecy and Silence Are a Child Predator’s Best Friends, but Other Events the Same Day Show That Soon Our Justice System Will Reveal the Truth

  1. Pingback: Latest Pa Criminal Statutes News | PA Laws

  2. Ted Harvatin says:

    It is a sad day when  law professor maligns a criminal defense attorney for zealous advocacy. This is not a popularity contest Professor. The defense attorney’s job is not to take into account the feelings of the victims. The state has filed criminal charges, declaring that it can prove its case beyond a reasonable doubt. The obligation of the defense is one and only one thing- make your case. 

    • I think she is actually maligning the attorney for touting himself and defending his client VERY poorly. It is arguable that Amendola’s behavior is specifically designed to gain fame for himself as a defense lawyer. The things he has allowed Sandusky to do have done nothing but hurt Sandusky’s defense. I think that this author illustrates this…

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