One of the sad spectacles of post-Clinton America is the media’s gushing admiration for the strategic game-planning of deceit. It’s center stage today in Bellefonte, Pennsylvania, where lawyers for Jerry Sandusky — who is charged with more than 50 counts of child sexual abuse during his tenure as assistant coach of the Penn State football team — waived his preliminary hearing.
Different jurisdictions have different rules of criminal procedure, but preliminary hearings are routinely either obviated by the filing of a formal indictment or waived by the defense. This is because they are not hearings to establish guilt beyond a reasonable doubt (the standard for conviction at trial). They are probable cause hearings, ensuring that there is the mere threshold of evidence required to refer the case to a trial court. In federal procedure and in many states, preliminary hearings almost never happen because the grand jury must find probable cause in order to file an indictment. So, if — as generally happens — the grand jury files its indictment (or the defendant agrees to plead guilty) before a the preliminary hearing date, there will be no need to have the hearing.
In some states, the grand jury’s indictment is not deemed to settle the matter of whether there is probable cause to warrant a trial. Instead, defendants are entitled to have judges basically check the grand jury’s work. Pennsylvania is such a state. But what little advantage there may be for the defense in forcing a preliminary hearing (they get to hear the testimony of relevant witnesses) is usually outweighed, especially in a high profile case, by significant downsides: (a) the defendant has no real chance of getting the case thrown out because the bar of probable cause is so low; (b) losing the hearing will often be reported in the media as if it were being convicted at trial — so it’s like a second round of ruinous publicity after the initial arrest; and (c) if there are plea negotiations, the prosecutor will demand a more severe plea because the defendant has forced an unnecessary proceeding in which victim witnesses are put to the anxiety of testifying.
So here is what Sandusky and his lawyer, Joseph Amendola, did today: they made everyone, including the judge, the prosecutors, and the media, think that they were not going to waive the preliminary hearing. That forced the prosecutors to make the witnesses show up and be prepared to testify, which in turn got the press totally spun up about the prospect of flesh-and-blood, emotionally damaged victims reliving the horrors described in the grand jury’s findings. At the last moment, Amendola advised the court that Sandusky did not want the hearing after all. The titillated media, anxious to fill the coverage void, then predictably invited Amendola to conduct a lengthy press conference outside the courthouse. Exploiting this well orchestrated opportunity, Amendola proceeded to maintain Sandusky’s innocence, wax about how anxious his client purportedly is for the trial to start, and spin the narrative according to which he hopes the press will cover the case in the weeks leading up to a trial (if there is one).
That narrative is ludicrous. Amendola — with the nod and wink of one who has access to inside information — insists that everywhere you sift through the evidence, you find Mike McQueary lurking. McQueary — a profile in cowardice expertly profiled by Mark Steyn a few weeks back — is the graduate assistant who alleges that, in 2002, he saw Sandusky sodomize a 10-year-old boy in the locker room shower.
McQueary was found highly credible by the grand jury. Yet, Amendola — who grudgingly acknowledged that he has not yet seen the transcript of McQueary’s grand jury testimony — intimates that the witness is perjurer. As he tells it, this means the whole case will collapse because McQueary is such a central figure. Of course, when you read the grand jury’s report, you quickly see that there are at least 10 victims who’ve come forward, independently alleging serial acts of rape and sexual abuse by Sandusky over a period of years, corroborated by other witnesses who saw strange behavior, confronted Sandusky, and confirm various disturbing details. In fact, while McQueary’s testimony may help the prosecution’s case, it appears unnecessary. He is the kind of witness who may be extremely helpful to the prosecution’s investigation of the case but is collateral to the trial. The trial will focus on the victims the investigation has identified; McQueary would be among the witnesses least interesting to the jury.
This is all pretty elementary. Yet, the media love to be lied to. When I was a kid, “Don’t insult my intelligence,” was a commonly heard rebuke. Not anymore. These guys love not only to be spun but to talk about how deft the spinning is even as it is happening. Even as Amendola bluntly explained that waving the hearing was a tactical decision aimed at avoiding a public airing of the accusations, the geniuses on ESPN (whose extensive coverage of this “sports story” includes a veteran defense lawyer) pronounced the day a “victory” for Sandusky. They marveled at how, as a result of Amendola’s strategy, they themselves were now talking about the defense’s version of events rather than the testimony of ten sexual assault victims. And meantime, they added, by sparing the victim witnesses the emotional strain of testifying, Amendola had shrewdly left the door open for a guilty plea on more favorable terms.
If I were the prosecutor, I’d more likely remember how Sandusky and Amendola inflicted on the victim witnesses the emotional strain of believing, until the last second, that they’d be forced to testify about the awful things allegedly done to them — and how the whole drama was played out for no higher purpose than to shape the press coverage for a few weeks. And as for the press coverage, I think it tells us a lot more about the press than about Mr. Amendola’s prowess.