Sandusky’s Silence May Roar Louder than any Nittany Lion

Should the jury currently deliberating the fate of former Penn State Assistant Football Coach Jerry Sandusky return what many court-watchers predict will be multiple guilty verdicts, some of the post-trial analysis will likely focus on Sandusky?s decision not to testify in his own defense. In a case that, on its face, seems chock-full of strategic head-scratchers by his defense team, his attorney?s promise about testimony that wasn?t forthcoming is a list-topper. (Defense Practice Tip ?#7?: never promise a jury that which you might not deliver!) Still, the decision of whether or not a client/defendant should testify in his or her own defense is always the central consideration in any criminal trial.

It is fundamental to the American Criminal Justice System not only that a defendant?s right not to testify is near absolute under the 5th Amendment?s privilege against self-incrimination, but also that a jury may not consider his or her election not to do so when deciding the question of guilt or innocence. See Griffin v. California, 380 U.S. 609 (1965). Nonetheless, experienced defense attorneys all know that, despite repeated instructions to the contrary, a defendant?s choice to remain silent can have an impact. For that reason, I start my strategic planning in most cases with the assumption that my client?s case will be strengthened by his or her testimony. This is especially true in sex crimes cases where the ultimate strategic goal is to reduce the relevant evidence to a simple ?he said/she said? scenario in which hearing the defendant?s verbal denial (or explanation, in cases involving consent — which is not an applicable defense in the Sandusky case) can be the ultimate difference-maker. In practice, though, the reality is that the prospect of a client?s testimony is not always an available option. From an ethical standpoint, an attorney is precluded from allowing his client to testify when he or she is aware that the proffered testimony will be false. See Nix v. Whiteside, 475 U.S. 157 (1986); Model Rules of Professional Conduct Rule 3.3. A classic example of this is where a client who has told his attorney he committed the crime at issue, is planning on taking the stand to deny it, and it?s possible this may have been the determining factor in Sandusky?s decision.

Tactics and strategy also play a principle role in deciding the question (of whether or not a defendant should testify). Clearly, the centerpiece of Sandusky?s defense is that the alleged victims have either falsified or exaggerated their claims in order to reap economic benefits from the inevitable civil suits that will follow, most likely naming Penn State University and its ?deep pockets? as an additional defendant. The last thing Sandusky?s lawyer wants in this context is to have his client take the stand and make partial concessions and acknowledgements that, despite appearing to be denials, instead help corroborate the overall allegations against him — for example, if he were to testify, as was expected from defense statements and other testimony, that he showered with underage boys, but did not have sexual contact with them. Given both the impropriety and bizarreness of such an admission, I?m sure defense counsel felt that a ?denial? along those lines would not only backfire, but would help corroborate much of the proffered testimony and make Sandusky look like the ?creep? the prosecution is hoping the jury will perceive him as being.

Sometimes the determining factor about whether or not to testify is as simple as whether or not the client/defendant is a ?loose-cannon? or odd-ball whose testimony and demeanor will be so unpredictable as to play directly into the prosecutor?s hands. This may also have been a factor behind the decision not to have Sandusky testify, particularly in view of his strange and faintly damning post-arrest interview with NBC?s Bob Costas (yet another defense team head-scratcher), with which he most certainly would have been confronted and asked to either explain or expand upon, with likely disastrous consequences.

In other cases, the decision is simply a calculation by the defense that the government?s evidence is not strong enough and the credibility of their witnesses too damaged to prove the defendant?s guilt beyond a reasonable doubt. The general philosophy in these situations is why risk the defendant ?talking? himself into a conviction when the prosecution?s evidence and witnesses probably have ?talked? the jury out of it? (Or, as I sometimes tell clients who remain insistent, ?It is far more common to talk oneself into a conviction [or arrest] than it is to talk oneself out of it.?) This was clearly the case in the Roger Clemens trial, United States v. William R. Clemens, No. 10-cr-00223, where defense counsel correctly assessed the nature of the government?s evidence and the credibility of its witnesses (along with the jury?s probable confusion about ?what the fuss was all about to begin with?) and presumably prevailed on his client not to testify; although I suspect he also wanted to avoid the mental impression of his client holding up his right hand and swearing an oath when the underlying case was all about that very scenario (and to avoid providing the basis for a brand new ?revenge? trial should later events and newly discovered evidence establish he was lying).

Sandusky?s election could have been decided by any one of these frequent considerations, or a combination of all of the above, although it?s difficult to assume it was based on a strength of the evidence analysis given the nature of the evidence that was admitted. Whether ill-advised or best-available strategy, in the end, his decision means nothing more than that the burden of proof remains squarely where it?s always been, and by law must remain, on the government. Despite the charge, regardless of the defendant, notwithstanding the venue, and irrespective of the nature of the underlying facts, the cornerstone principles of American Justice never change; they are: the defendant is presumed innocent; and it is never about what he may or may not say during trial and always about what the government has or has not proven, beyond a reasonable doubt.

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