Tuesday 19 June 2012

Jerry Sandusky's best strategy: Testify

BELLEFONTE, Pa. ? The list of potential witnesses submitted by Jerry Sandusky's defense attorneys runs about five dozen deep. It includes the obvious, such as Sandusky's wife, Dottie, to the unexpected, such as the wife and son of former Penn State coach Joe Paterno, who have said they know nothing about being called to the stand.Jerry Sandusky's defense may be reliant on the defendant's willingness to take the stand. (Getty Images)

However, it's likely only one witness could possibly save Sandusky from being found guilty of child molestation.

Jerry Sandusky himself.

After four withering days of witness testimony and prosecution allegations last week, Sandusky's defense is expected to begin Monday at Centre County Courthouse. The task is daunting, something lead defense attorney Joe Amendola acknowledged in his opening argument, comparing it to climbing Mt. Everest.

That was before powerful, personal stories from alleged victims, often through emotional tears, painted Sandusky as a serial rapist who through perverted methods sought out, groomed and then controlled young boys assigned to his Second Mile charity designed to help poor and troubled youth.

As ugly as the charges sounded and the finding of fact from last year's grand jury read, the testimony made it so much more real.

In his opening statement, Amendola told the jury they would hear from Sandusky "in his own words," creating speculation that he'll testify in his defense. Sources within the Sandusky team say Jerry expects to take the stand.

[Related: Dan Wetzel: Sandusky prosecutors leave jury to mull mountain of strong evidence]

Until the 68-year-old former Penn State defensive coordinator rises from his seat at the defense table, walks directly in front of the jury box and steps into the witness stand to supposedly tell the truth, the whole truth and nothing but the truth, nothing is certain, however. Sandusky is not legally required to testify and the jury was reminded early on it can't hold that against him.

Putting Sandusky on the stand is fraught with danger for the defense. He struggled to explain himself in interviews with NBC and the New York Times, doing more damage than good.

His interview with NBC's Bob Costas included him admitting some of his behavior and famously pausing when asked if he was "sexually attracted to young boys" before denying it. It stands to reason that the seven men on the 12-person jury wouldn't hesitate to scream "no" if confronted with such a question.

The interview was such a disaster the prosecution played portions of it Wednesday to bolster its case.

Costas had just a few minutes to prepare for the interview after Amendola surprised him by offering it. He was also constrained by time and commercial breaks. In a later interview with the New York Times, Amendola jumped in and helped clarify some of Sandusky's clumsier answers.

Sandusky would enjoy no such luxury on the witness stand under what would likely be a blistering, indignation-dripping-from-each-word cross-examination by deputy attorney general Joseph E. McGettigan III.

Still, after the prosecution's strong presentation of its case, Sandusky might be his own best chance to explain his essentially inexplicable behavior.

Sandusky acknowledged in those media interviews that he routinely showered with boys in Penn State football locker rooms, often after hours. That includes what he described as "horsing around" behavior: hugging them, soaping them up and touching them while they were naked.

[Related: Dan Wetzel: Sandusky's small group of supporters say he's a 'saint' ]

There are also pre-bed routines in his basement when kids would stay over his home and the multiple times he took boys to local hotels.

He said none of that was sexual in nature.

"Without intent of sexual contact," Sandusky told NBC.

Eight alleged victims, one after the other, often in painstaking detail, told stories that things did indeed go further. And it was established through testimony that two witnesses, former Penn State assistant coach Mike McQueary and a Penn State janitor, walked in on Sandusky as he raped unidentified boys in the showers.

The defense hinges on two points. The first is that the jurors believe Sandusky's contention that his behavior was innocent and not criminal. They'd need to believe that nearly dozen alleged victims and witnesses are all making it up.

The second is that his admitted behavior, which most people find inappropriate, doesn't raise enough concern that they will put him in prison just to be on the safe side.

Both tasks are considerable long shots, especially since the defense made little headway on the majority of the victims during cross-examination.

Clearing the first hurdle means providing a direct counter to brutal tales of oral and anal rape of children.

[Related: Most neighbors of jurors don't support Sandusky, want justice]

Only Sandusky can properly explain his version of exactly what happened in the shower and why all these boys and Penn State employees would view it differently.

If it's he said-he said, both sides need to tell their stories.

Only then can the defense attempt to rationalize Sandusky's troubling lifestyle. Considering the breadth of charges he is facing ? 20 felonies ? and the fact that conviction on just a few likely would send him to prison for the rest of his life, he can't afford to simply hope jurors accept his lawyer's explanation.

Amendola, in his opening statement last week, pointed out that showering with a boy is not a crime.

It is alarming, however, especially in a case where jurors have been repeatedly presented with witnesses, ranging from alleged victims to McQueary to a frustrated police detective, who expressed regret at not stopping Sandusky sooner despite all the warning signs and mounting evidence.

The prosecution smartly made it clear that those previously capable of doing something like the jury can now desperately wish they'd done more.

Amendola will attempt other tactics. He's already harped on how many of the alleged victims hired civil attorneys and planted the seed that they may have embellished their testimony for potential financial gain.

He also picked apart inconsistencies in their stories through the years, although the alleged victims countered by describing their inner struggles to fully admit the extent of their abuse in initial interviews with police or social workers.

[Related: Sandusky juror profiles: All Caucasians, most have ties to Penn State]

On Friday, Amendola also won a motion to allow a psychologist to testify that Sandusky suffers from "histrionic personality disorder," which stripped him of understanding appropriate boundaries. It is an attempt to explain his behavior in "grooming" alleged victims and his cringe-inducing words in so-called "love letters."

A prosecution psychologist was expected to examine Sandusky on Sunday to perhaps offer a counter opinion.

None of this will carry the weight of Sandusky on the stand.

He spent last week hunched over the defense table, often with his head tilted slightly and resting in his left hand, unmoved as witness after witness alleged an array of dastardly, disgusting acts he committed on them.

Testifying would be his chance to look jurors in the eye and fight for his life. Facing long odds, few options and dwindling opportunity, it may be all the defense has. He doesn't have to convince 12 jurors to find him not guilty. He needs just one to cause a hung jury and buy him more time. One that hears something in his voice that causes pause.

Putting any defendant on the witness stand is a risk. One as unpredictable and unlikeable as Sandusky is an enormous risk.

After a devastating week from the state, however, counting on smoke, mirrors, psychologists and no testimony by Sandusky might be the riskiest strategy of all.

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