PA v. Jerry Sandusky: Why Waive a Preliminary Hearing?

Yesterday a reporter asked me about the decision by Jerry Sandusky’s attorney to waive his right to a preliminary hearing in which he would have had an early opportunity to face his accusers (perhaps as many as 11) in court. Frankly, I found the attorney’s decision to be another "head-scratcher" in what is becoming a pattern of unconventional decisions by the defense in this case. Yes, I am leery of offering opinions without having the benefit of all the objective facts and to be sure, there are times when it makes sense to waive this sort of hearing and place a client’s case on the fast-track to trial.

The circumstances where I would consider waiving this sort of hearing involve wanting to avoid the extreme prejudice and pre-trial publicity that comes when particularly salacious facts and egregious conduct is revealed for the first time in open court, or when I am defending a case in one of the jurisdictions where the government offers to exchange early (and not yet obtainable) discovery in exchange for such a "Waiver." I will also consider a waiver when the government’s witnesses are old, infirm, or transient and I do not want to give the government an opportunity to substitute their live testimony with transcripts by virtue of having been able to cross-examine them at the hearing. Finally, I will consider a waiver of the preliminary or probable cause hearing when the case is almost certain to be resolved with a plea and I do not want to expose the likely sentencing judge to all the underlying facts and to the emotions and pathos of the affected "victims" beforehand.

However, with the Sandusky case, where defense counsel not only appears defiant but is openly ridiculing the alleged victims with references to "1-800-REALITY" phone lines ( Careful there, Counselor!) and is insisting that his client will be vindicated at trial, the decision to waive the hearing strikes me as non-sensical. As an experienced criminal defense attorney whose practice includes a significant proportion of sex crimes cases, I welcome any opportunity to "discover" and probe the government’s case before trial, via a preliminary or probable cause hearing or any other procedures.

Moreover, I always relish the opportunity to take an early "crack" at the government’s witnesses not just to try to lock them into sworn testimony that may later come back to haunt them (although you are rarely given latitude for a full-on "scorched earth" cross-examination at this sort of hearing) or to generate additional "statements" that often contrast and conflict with later testimony. I also like having the opportunity to be able to size-up and assess the potential jury impact of each witness (as well as his or her ability to withstand aggressive cross-examination). It is a great opportunity to "test" the plausibility of some of my more obvious defense theories and strategies and to obtain answers that I might not expect (and may later want to avoid).

Attending a preliminary hearing also provides me the opportunity (again with restricted latitude) to "interview" government witnesses who will almost certainly decline to be interviewed outside the courtroom. In some instances, too, it can provide a chance to blunt the one-sided public perception of a case and client (as filtered to the Press by the prosecution) and, albeit more rare, it can occasionally help sow early seeds of reasonable doubt.

These factors are usually more favorable to the defense, so the government often tries to avoid preliminary/probable cause hearings and instead pursues the route of direct indictment. Indeed, in most jurisdictions, the government is more likely to proceed via preliminary/probable cause hearing only in their weaker cases where they are either looking to lock-in the testimony of wavering witnesses or size them up for themselves!

For those same reasons, defense attorneys like me are almost always eager and grateful for the "access" and opportunity this type of preliminary hearing provides in advance of trial. Jerry Sandusky’s lawyer may well have his reasons for disagreeing, but to me, I cannot fathom, identify or understand what those reasons may be.

As an aside, you can check out my strategies in action at the probable cause hearing for my client Clark Rockefeller in his first degree murder case, scheduled in California on January 18.

If you have been accused of a crime and you need a lawyer to represent you please contact Brad Bailey at 781-589-2828