How not to defend a client

If the Sandusky case shows people anything, it shows how attorneys should not defend their clients. From the start, Joe Amendola has made terrible decisions. He allowed Sandusky to give a phone interview with Bob Costas that resulted in Sandusky making himself look guilty. He allowed Sandusky to do a follow-up interview that only made matters worse. Amendola made numerous attempts to delay the trial, none of which made much sense. In his opening statement, he promised to put Sandusky on the stand and argued that Sandusky’s behavior can be chalked up to a personality disorder.

And yesterday he harassed one of the young men, actually the youngest of the eight testifying, during cross examination. Victim 1 is 18-years-old and just graduated from high school. During his direct testimony the young man cried as he revealed all the abuse Sandusky allegedly did to him. When it Amendola tried to impeach the young man’s testimony, this happened

Joseph Amendola, the defense attorney for Sandusky, tried during cross-examination to pick through the accuser’s account of events, showing that he told investigators with Children and Youth Services and the state police different timelines for when the oral sex abuse began and ended, and showing that he didn’t even mention oral sex to investigators until about eight months into the investigation, when troopers told him there were other young people with similar claims.

The back-and-forth between Amendola and Victim 1 became tense at times, as Amendola asked the accuser to account for multiple differences in his descriptions of abuse to investigators and the grand jury in the past few years. The accuser dismissed Aamendola’s suggestion that he was lying, saying it had been difficult to tell people about the abuse, and sometimes he told a “white lie.”

Victim 1 threw his head back at one point, covering his face with hands and laughing, before crying, saying ‘Stop,’ to Amendola. Both the judge and Amendola asked whether the man needed a break from testimony, but he declined.

Let us assume, for the sake of argument, that the young man is lying. He had just finished giving testimony about what Sandusky allegedly did to him, testimony that brought some jurors to tears. The logical thing to do if you have anything contradicting this young man’s statements is to go easy on him. Let him impeach himself. Let him walk into a corner that you can point to when it is your turn to present evidence. You do not badger him to the point of tears because he if is lying the jury will now side with him. You just made yourself, and by proxy your client, look like a bully.

This is basic lawyering. You do not attack sympathetic witnesses even if they are lying their pants off.

That was absolutely bad, but I think Amendola’s cross examination of Mike McQueary was worse:

Rather than zero in on significant discrepancies in McQueary’s accounts of when the incident occurred — given in previous testimony before a grand jury and in a hearing in December — the defense started off with a weak point: that McQueary previously claimed to have seen Sandusky and the boy in the shower two times rather than the three he described Tuesday — once in a mirror, again directly and a third time after he slammed a locker door to make it known that they were being observed.

Sandusky’s lawyers also failed to confront McQueary about his reluctance to intervene in the situation.
McQueary has said he did not ask Sandusky what was going on and did not call the police the night of the incident. McQueary, in fact, volunteered the fact that he did not physically intervene during his cross-examination Tuesday, but the defense seemed almost oblivious to the gift McQueary handed them amid the devastating answers he provided to their other questions.

When Sandusky’s lawyers did get around to asking McQueary about the inconsistent dates he has offered in the past, their pattern of questions allowed him to give an easy explanation.

Rather than confront McQueary directly with his testimony at a preliminary hearing during which he expressed absolute certainty about the date, the defense simply asked about his prior testimony in general. That let McQueary remind jurors that in interviews, he has also expressed uncertainty about whether the events occurred in 2001 or 2002 and declare that he did not dispute the prosecution’s timeline of events.

Perhaps most seriously, the defense failed to establish that McQueary could not have seen the most serious crimes he believes he saw because of the relative height of Sandusky and the young man he saw in the Penn State shower.

At a hearing in December involving perjury charges against former Penn State athletic director Tim Curley and former senior vice president Gary Schultz, different lawyers skillfully pointed out that McQueary could not have seen any sex unless Sandusky had been holding the boy in the air.

The failure of Sandusky’s lawyers to address that testimony may lead the jury to conclude that Sandusky did engage in sex with the young man — even though at the end of the Curley-Schultz hearing, it seemed clear that McQueary’s testimony was insufficient to prove that any sex occurred.

Honestly, how can anyone be that incompetent? Here you have a person who claims he witnessed child rape, and instead of saving the child he runs away. Instead of calling the police, he calls his father. Instead of his father telling him to call the police, his father tells him to call his bosses. Instead of his bosses, one of whom in the police liaison, calling the police, they sit on it and restrict Sandusky’s access to the facilities. Mike McQueary, a former football player, claims he witnessed Sandusky raping a child but did nothing to stop it because he could not process what he saw (never mind that apparently he could not have actually seen what he claims he saw because of how the shower is built), and this was the best Sandusky’s team of lawyers could do?

At this point, it does not look good for Sandusky. So far three young men have testified (one just finished testifying as I began writing this), and several witnesses have corroborated their stories or given accounts of what they witnessed. All of the accounts sound similar and imply a pattern of abuse on Sandusky’s part. More so, the defense has not managed to challenge, let alone discredit, any of these accounts.

A smart attorney would have told his client to take a plea deal in this situation. You cannot have eight people get on the stand and testify to more or less the same thing and try to claim they are in some grand conspiracy to get money. A smart attorney would know you would lose that case.

The only thing I can assume is that Amendola thinks that by keeping the trial in the local community people’s affection for Sandusky will make them more skeptical of the young men’s claims. But that seems unlikely. It might work with one or two accusations, but not ten. No matter how much you like someone, a dozen people saying the same person raped them is hard to disbelieve.

That said, we still have not seen what case Amendola plans to put on. I am morbidly interested to see what he presents because it has to be tissue-paper thin. He has started the train rolling, so we might as well watch it crash and burn. The worst part about this is that it forces these young men to go through all this emotional turmoil.

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2 thoughts on “How not to defend a client

  1. Jerry Sandusky appears to be a pedophile by some of his alleged-reported actions. But, if the accusers had access to a phone after the alleged incidents and failed to call 911, I would immediately invalidate any and all of their testimony. The alleged-victims appear to be not victims at all imo, they appear to me to be money-seekers and gay.

  2. Jan, many sexual abuse survivors do not report their abuse out of fear, shame, and desire not to get the abuser in trouble. And keep in mind that these were children. Most of the abuse began when they were 11 or 12-years-old. Do you really expect a child that young to call the police after being abused. As for them being money-seekers and gay, there is no evidence so far that any of them are only concerned about money. If they were, they could have easily refused to testify at trial and wait for the civil case. And their sexuality is completely irrelevant to them being abused.

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