I’ve blogged about the Fifth Amendment before. Back in April of last year I wrote a post to explain that while the 5th Amendment is often thought of as a refuge for the guilty, it in fact is there for the protection of the innocent. Not having to ever tell your side of the story is a valuable right that should not be thrown away lightly. Yet, Jerry Sandusky, the former Penn State football coach who is accused of multiple acts of child sexual abuse, decided he would toss the 5th aside and answer some questions from veteran announcer Bob Costas. It didn’t go well. First of all, Sandusky decided to just call in rather than appear in person. That diminishes your credibility immediately. If you’re not looking people in the face and allowing them to look back at you , its hard to assess your credibility. But the Q and A that got everyone talking is when Costas threw Sandusky what should be a ground ball- Q: “Are you sexually attracted to young boys?” The coach haltingly replied: “Am I attracted to young boys? I enjoy young people. I love to be around them. But, no, I’m not sexually attracted to young boys.” I checked in Black’s Law Dictionary and the only acceptable answer to that questions is an immediate “No, of course not.” Besides doesn’t everyone know that when you answer a question with the same question back you are stalling for time and trying to come up with a good answer? But from a trial strategy point of view, the worst thing he did was say this in denying the worst allegation -that he had sex in the locker room with young children: “I could say that I have done some of those things. I have horsed around with kids. I have showered after workouts. I have hugged them, and I have touched their legs without intent of sexual contact.” So while he denied the worst of the worst conduct, he did admit that he was alone in the showers, naked with young boys, horsing around to the point where some physical contact occurred. That’s 90% of what the State had to prove. So now there’s no denying you showered naked with young boys. I am sure the average Pennsylvanian juror will not appreciate that habit. But read this portion which was unaired during the Costas show but which was played on the Today show the next morning:
Bob Costas: “But isn’t what you’re just describing the classic MO of many pedophiles? And that is that they gain the trust of young people, they don’t necessarily abuse every young person. There were hundreds, if not thousands of young boys you came into contact with, but there are allegations that at least eight of them were victimized. Many people believe there are more to come. So it’s entirely possible that you could’ve helped young boy A in some way that was not objectionable while horribly taking advantage of young boy B, C, D, and E. Isn’t that possible?”
Jerry Sandusky: “Well — you might think that. I don’t know. (LAUGHS) In terms of — my relationship with so many, many young people. I would– I would guess that there are many young people who would come forward. Many more young people who would come forward and say that my methods and– and what I had done for them made a very positive impact on their life. And I didn’t go around seeking out every young person for sexual needs that I’ve helped. There are many that I didn’t have– I hardly had any contact with who I have helped in many, many ways.”
How creepy is that last sentence? What was his lawyer thinking let him talk on national television about this? Well his lawyer, Joseph Amendola has some questionable judgment in his own right. It seems several years ago, when he was 49, Joe Amendola got his 16 year old client pregnant. Now in his defense, 16 is the age of consent in Pennsylvania and Joe married the girl two years after the birth of the child. So he’s a stand up lecher. But having sex with your client (at any age) is frowned up by the Bar Association. That she’s 33 years younger than you is not great either.
All of this will come back to haunt these two at the trial. Any prosecutor with minimal skills will have a field day should Sandusky testify at trial. And that’s the greatest benefit of the 5th Amendment. You get to remain silent and not say a word while the prosecution has to lay out its whole case before you first. You can assess the strength of their case and think about what your responses would be as you hear the allegations being testified to without the State knowing your defense or strategy. Now the State knows Sandusky will not deny being in a shower with a naked boy. Not good for him.
A notorious judge in Suffolk County, NY used to have a huge stuffed fish behind his desk in his chambers. The plaque underneath read “I’d be OK if I had just kept my big mouth shut.” An important reminder for Sandusky and Amendola.