Sports In the Courts Blog : New York Attorneys & Lawyers Specializing in Sports Law & Legal Analysis

Some scandals just seem to have no end.

Apparently, as disclosed by Penn State President Rodney Erickson, the Penn State Board of Trustees received a “briefing” on the Sandusky Grand Jury investigation three months before Sandusky was arrested. The briefing was allegedly conducted by former PSU President Graham Spanier before he resigned after much criticism of his handling of this incident.

Now, you can take a wild guess on how many non-law enforcement individuals should be “briefed” on secret grand jury proceedings? If you answered “zero”, you are right.

The result, in part, of this bizarre briefing of the PSU Trustees is that a “re-interviewing” process has now begun of Penn State “staffers” by the State Attorney General’s office. Once again, prosecutors will be asking who knew what about Sandusky’s alleged crimes and when did they really find out. In addition, prosecutors will be investigating to determine when Penn State officials “got their stories together” after an improper briefing about what might have been said in the grand jury.

Once again, not good. 

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Today, before the national media, Jerry Sandusky's defense attorney told the world that his client was innocent and he was going to "fight like hell." So why didn't they?

Instead of going through with a preliminary hearing on whether the prosecution had probable cause to charge Sandusky with the crimes in the indictment, the defense waived the hearing and decided to proceed directly to trial. In the news conference that Attorney Joseph Amadola appeared to be enjoying, he stated that the hearing was waived because the defense could not fully attack a witnesses credibility in this type of limited hearing. Amadola also said that the defense waived the hearing for public relations reasons of not having these horrible allegations repeated, on a national stage, against Sandusky.

Well, "public relations" concerns are not a very sound defense strategy. In cases that hinge on the credibility of witnesses (especially from years back), a defense attorney wants as much testimony as possible. The defense attorney wants the prosecution's witnesses to tell their stories, on the record, over and over again. Remember, no one tells a story the exact same way twice. If Sandusky has a chance for an acquittal, his defense team needs to exploit inconsistencies in critical witnesses' accounts. A good defense attorney will use these inconsistencies, however minor or benign, to create reasonable doubt in the minds of a juror.

Yet, today, the defense bypassed this golden opportunity to get more inconsistent statements on the record. Forget about "winning" the preliminary hearing, the object of the game is to build an arsenal for the defense at trial. Since the defense gave this up, is the real truth about the strategy something else?

We heard a relieved prosecutor state that he was pleased that the complainants were not "re-victimized" today. In my experience as a prosecutor, this suggests that the defense wants (or may want) something in return. The eventual trade off here may be a more favorable plea deal for Sandusky.
 

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Today, the Pennsylvania Attorney General, Linda Kelly, announced that Jerry Sandusky would be facing additional charges in the continuing child sex abuse scandal. In the latest indictment, Sandusky has been charged with four counts of involuntary deviate sexual intercourse, a first degree felony, and two counts of unlawful contact with a minor. The new allegations pertain to two new alleged victims who were minors at the time of the alleged encounters. The two minors, known by their alias as Victims 9 and 10, both encountered Sandusky through his work at the Second Mile foundation, which he began. According to Ms. Kelly's statement, Victim 9 was between 11 and 12 years old when he met Sandusky around 2004. It is alleged that Sandusky provided Victim 9 with gifts and money and took him to Penn State football games. Also, according to the AG's statement, Sandusky allegedly met Victim 10 in 1997 after a counselor recommended that Victim 10 attend the charity "because of difficulties in his home life." In total, Sandusky is alleged to have victimized 10 boys over the course of 15 years. According to Kelly. the additional charges filed today "were recommended by a statewide investigating grand jury, based on evidence and testimony that was received following the initial arrest of Sandusky on November 5th." Sandusky, who continues to maintain his innocence and his taken to the public airwaves to share some of his story, most notably an interview on "Rock Center with Brian Williams" will have a preliminary hearing with respect to these charges on December 13, 2011.

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Let's face it, the last few weeks have not been very good for Penn State or its legendary football program. In fact, they have been so bad that Joe Paterno was fired and has now gone quiet. The allegations of serial child abuse by former assistant coach Jerry Sandusky and a possible institutional cover-up have turned into a nightmare for the school.

However, Penn State promised us a thorough "investigation" and a search for the truth into these charges, no matter how ugly the facts may be. Today, Penn State took a substantial step in keeping its promise. Penn State needed a major (and independant) law enforcement official to give any internal investigation some credibility. In naming former FBI Director Louis Freeh, Penn State has chosen wisely.

Since Freeh used to be the head of the one of the world's most elite criminal investigation agencies, he has the skills to do a true investigation into this scandal. But, even more importantly, he should have the connections necessary to coordinate his efforts with law enforcement (state and federal) to find out just how deep this scandal may go.

As this story broke, Penn State seemed stunned and slow to react. With choice of Freeh to head its investigation, Penn State has cured that problem, as least for now.

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We all know how this works. There is a horrific scandal involving PSU and defensiveless children, the school lied, covered it up and then fired its long term coach, Joe Paterno. So the ink on the avalanche of lawsuits against Penn State should be pretty close to dry right now, right? Penn State is going to pay countless millions, right?

Well, maybe not. None of the pundits are talking about it (because they haven't played it forward) but the State of Pennsylvania has a monetary cap of $250,000 of claims against the state and its agencies. As part of the its torts claim act ("TCA"), If a public entity is deemed to be a "agency of the commonwealth" then this limit of liability will apply.

My review of the TCA shows unsettled law of whether of Penn State will be able to gain this protection. But you can rest assured that Penn State's lawyers are going to seek all of the protections that may be avaiable under the TCA.

Also keep in mind that there could be significant statute of limitations problems for some of the victims from more than a decade ago. Either way, the point is to keep in mind that if the TCA applies, then the potential verdicts agaisnt Penn State will be greatly reduced.

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Lawyers often differ on how to approach cases. I don't like a criminal defendant giving a interview to a hostile media. After Jerry Sandusky's disastrous interview yesterday this is why:

1. Burden of Proof: the biggest advantage a criminal defendant has is that the prosecution has to prove each and every element of its case beyond a reasonable doubt. This is the highest standard in our law. After Sandusky's interview, here's what the prosecution no longer has to prove because Sandusky admitted it. Sandusky told us he showered with young boys on more than one occasion, they were naked, their bodies touched and he was the only adult present in the shower. Now, the only factual difference from the indictment is that Sandusky uses the term "horseplay" and the prosecution uses the term "rape" for what happened in the shower.

2. Never call anyone a liar. Sandusky basically took that position that any eyewitness, including Assistant Coach Mike McQueary, is lying about their allegations of sexual misconduct. The prosecution loves this, as they intend on calling a parade of witnesses who will say Sandusky is guilty. But what is more important (and a question McQueary failed to answer) is why would they lie? What would be all of these witnesses' collective motivation to lie and falsely accuse Sandusky of monstrous crimes and in the process destroy Joe Paterno's legacy?

3. Sandusky now must take the stand. Since Sandusky has now come out and given an alternative theory of innocent "horseplay" for what happened, the jury will expect that he will take the stand to give the same story. If he doens't, Sandusky risks the inference of guilt from the jury.

Bye bye 5th Amendment rights

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I am not the first to blog this, but the shocking allegations surrounding the Penn State football program and the university must be fully investigated in a responsible and believable way.

We can not trust the same university who failed to acted (and whose officials have now been indicted for lying) to investigate itself. That's a joke. At a minimum, Penn State should outsource its entire investigation to credible person (see the MLB and the "Mitchell Report"). We also know there is enough smoke around this scandal that the Penn State locals can not be trusted to effectively prosecute the ALL the individuals, including Joe Paterno if appropriate, and the area police who may have discouraged criminal cases involving Jerry Sandusky.

Want more concerns? Exactly how did the prior prosecutor on the Penn State child abuse investigation, Ray Gricar, turn up dead? Wait, let me correct myself, the police never found his body, just his computer resting at the bottom of a Pennsylvania river. Back in 1998, Gricar chose not to prosecute Sandusky. Why? Was he going to change his mind before he died. How can an assistant district attorney just disappear?

It may seem off topic but our country's wise Founders established the federal court system for this type of situation. The federal courts and the US Attorney were designed to enter investigations where the locals had failed to act or could not be trusted to be fair. We are 2 for 2 here with Penn State.

I don't want to hear about the federal government's limited resources or anything like that in this case. We are dealing with a major child abuse case, with victims that still may be afraid to come forward. If the FBI and US Attorney's office doesn't take the lead in the investigation and prosecution of an outrageous case like this, then they have violated their collective duty to all of us.
 

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We all know how this works. There is a horrific scandal involving PSU and defensiveless children, the school lied, covered it up and then fired its long term coach, Joe Paterno. So the ink on the avalanche of lawsuits against Penn State should be pretty close to dry right now, right? Penn State is going to pay countless millions, right?

Well, maybe not. None of the pundits are talking about it (because they haven't played it forward) but the State of Pennsylvania has a monetary cap of $250,000 of claims against the state and its agencies. As part of the its torts claim act ("TCA"), If a public entity is deemed to be a "agency of the commonwealth" then this limit of liability will apply.

My review of the TCA shows unsettled law of whether of Penn State will be able to gain this protection. But you can rest assured that Penn State's lawyers are going to seek all of the protections that may be available under the TCA.

Also keep in mind that there could be significant statute of limitations problems for some of the victims from more than a decade ago. Either way, the point is to keep in mind that if the TCA applies, then the potential verdicts against Penn State will be greatly reduced.  

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Once again a major scandal has broken out in sports and once again I find myself giving the same unsolicited advice: slow down. I know that many major media outlets and some in NYC talk radio hosts have already pronounced the Penn State administration and former defensive coordinator Jerry Sandusky guilty of horrific crimes but for now remember they are all maintaining their innocence.

Even if a set of allegations look really bad (and they do), we still must cling to notion of innocent until proven guilty. Also be mindful that crimes involving child victims can be very complicated and difficult to prove.

As for Joe Paterno, I have heard media commentators accuse him of committing "crimes" in this scandal. Given the information currently known, what exactly would these crimes be? And you can't make up crimes here, you actually have to look at Pennsylvania law. Today, Pennsylvania prosecutors said that Paterno is not a target of their investigation. That representation should mean something to the media.

Now, Joe Paterno may not have committed any crimes and may have done his "duty" by reporting his knowledge of alleged Sandusky's abuse up the broken chain at PSU but that doesn't mean that Paterno is not guilty of moral failure. When someone commits a crime, he has failed to comply with the laws of society. But when someone commits a moral failure (which may not be criminal), he has failed to comply with the laws of common sense.

Again, given the public information, it appears that Paterno should have done more, maybe a lot more. Given what he knew, he should have gone the the police when PSU failed to take action. Paterno should have kept Sandusky far away from PSU facilities and NEVER allowed him to have children on campus. Paterno should have acted with outrage and urgency. But he didn't.

These failures are not against the law but may be against what is right.

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