I can’t say I blame Jerry Sandusky’s attorney for agreeing to appear before a national television audience to field questions from NBC’s Bob Costas about his client. I mean, free publicity is free publicity, and for those of us in the criminal defense business free publicity means free advertising. Still, I was as shocked as anyone when Sandusky’s attorney volunteered to Costas during the nationally televised interview, "What if I can get Sandusky on the phone?" Even Costas was taken aback at this, saying "…I wonder if from your standpoint that’s the smartest thing to do."
From any analysis, it isn’t and never is; and why certain attorneys continue to defy logic and commonsense in this regard is beyond me. What part of the government having the entire burden of proof do they not understand? Why would any rational attorney permit his client to paint himself into a corner or limit his defense options by commenting about his case or his own mind-set, especially when a case or investigation is still evolving? As co-lead defense attorney in the Clark Rockefeller murder case in California I am acutely aware of the potential for fodder and possible use of his ill-advised nationally televised interviews (which I will fight), purportedly under the advice of prior counsel, and continue to ask "Why?"
The reality is the Press is never one’s friend, especially when "the one" is the center of salacious allegations. To be sure, Sandusky denied the allegations but even I couldn’t help but cringe when I heard him reply, "I enjoy young people. I love to be around them." Imagine how the media is going to "spin" that, or the field day the prosecutors are going to have with those comments, not to mention the inevitable Profiler’s analysis of what he said that I guarantee is already under way. It’s not just that the aphorism that "it is better to keep one’s mouth shut and be thought a fool than to open it and remove all doubt" applies. It’s also that each and every time one’s client opens his mouth in a free-ranging context the potential is there not only for him to help build the prosecution’s case for them, but also to limit the scope and substance of his own possible defenses. That’s a risk that is simply unacceptable with what’s at stake here. It is also confirmation that Commonsense is one critical class that needs to be taught in American law schools.