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Jerry Sandusky defense plays strategy card in waiving hearing

December 13, 2011 |  9:10 am

Jerry Sandusky, the former Penn State assistant football coach accused of child abuse, has waived his right to a preliminary hearing
The confrontation between Jerry Sandusky and those who accuse the former Penn State assistant football coach of child abuse has been put off for a while, with the defendant on Tuesday suddenly waiving his right to a preliminary hearing.

The move was a surprise only because the defense had unexpectedly insisted on the rare proceeding in the first place, and the rationale behind Tuesday's action seemed to be more in the realm of public relations than legal tactics.

In televised news conferences Tuesday, Sandusky's lawyer, Joseph Amendola, vowed to fight on. "There will be no plea negotiations," Amendola told reporters. "This is a fight to the death."

FULL COVERAGE: Penn State sexual-abuse scandal

In interviews with NBC News and the New York Times, Sandusky has denied any wrongdoing although he has admitted showering with boys. As he left the Bellefonte, Pa., courthouse Tuesday, he told reporters that he would "stay the course, to fight for four quarters" and "wait for the opportunity to present our side."

The former coach is accused of more than 50 counts of sexually abusing 10 boys over approximately 12 years. Some of the boys are connected to a charity Sandusky founded, and some of the acts took place at Penn State, according to a grand jury report.

The case has roiled the Penn State campus and dealt a major blow to the football program. Legendary head coach Joe Paterno was forced out, as was college President Graham Spanier. Two university officials, Athletic Director Tim Curley and former university vice president Gary Schultz, have been charged with perjury.

But the focus has remained on Sandusky and his criminal case. When someone is charged in a grand jury finding, the usual procedure is to go straight to arraignment and eventual trial on the charges, unless the parties come to a plea deal. But the defendant does have the option of a preliminary hearing, designed to force the prosecution to show a judge that there is indeed enough evidence to support the need for a criminal trial.

A preliminary hearing, also known as a probable-cause hearing, can serve as a check on an overzealous prosecutor who misuses a compliant grand jury to bring unsubstantiated charges. As Sol Wachtler, a noted New York jurist famously noted, a prosecutor could get a grand jury to indict a ham sandwich if he wanted.

But defense attorneys usually waive a preliminary hearing because the prosecution has a low standard of proof at such proceedings. It does not have to establish guilt beyond a reasonable doubt -– that's the standard for a trial jury. The prosecution needs to only present enough evidence to establish a probable cause that makes a trial worthwhile –- a much lower standard.

There are reasons to insist on a preliminary hearing in high-profile cases, however. It does offer the defense a chance to see some of the prosecution's witnesses before they testify at trial. Although the defense gets the transcripts of the testimony before the grand jury and other statements to authorities, a look at a real person can help a lawyer plan a cross-examination strategy.

PHOTOS: Penn State football rocked by sexual abuse scandal

But a preliminary hearing also has potential drawbacks for the defense.

Depending on how the prosecution handled the witnesses, Sandusky could have had to listen to a parade of accusers without getting a good chance to rebut their testimony. In an already highly charged case, that could have been a major public relations problem.

Amendola told reporters that Sandusky waived the hearing to head off a repeat of the child- sexual-abuse allegations, which "really would have left us with the worst of all worlds."

At his news conference, senior deputy Atty. Gen. E. Marc Costanzo said the defense move was unexpected but not unusual.

"This development, we believe, provides maximum protection to most importantly the victims in this case," Costanzo said. "It avoids their having to testify for a second time. They will, of course, testify at a trial in the case."

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-- Michael Muskal

Photo: Joe Amendola, attorney for former Penn State assistant football coach Jerry Sandusky, talks with the media in front of the Centre County Courthouse in Bellefonte, Pa. Credit: Rob Carr / Getty Images

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