Monday, June 25, 2012

Tips for the Prosecution: Jerry Sandusky

By Roger A. Canaff

Editor's note:  Roger Canaff's following post was written on June 7, and since then the prosecutors were able to get their conviction of Jerry Sandusky. Roger's advice is excellent and it's interesting to look back on the trial to see how many of the following points were used. 

 June 7, 2012
The lead prosecutor in the Sandusky case, Senior Deputy AG Joseph E. McGettigan, probably doesn't need my help. He began his career at the Philadelphia DA's office around the time I turned 15, and he's done and seen it all. But if he's as good as his reputation, then he's probably the type who never treats the opinion of a fellow professional as beneath him.  The good ones, like the legendary Dan McCarthy I wrote about a few months ago, are never too egotistical to listen.

My hope is that McGattigan's team stays focused on five basic tasks that often make the difference in child sex cases:

1. Have a theme, and weave it through the entire case. This, they are doing well so far. A theme in a criminal case is a psychological anchor that you want the jury to be repeating- literally- in deliberations. It's a phrase, a quote (often from a victim) that captures in essence the wrongness of what was done. It needs to be woven into every aspect of the trial where it can be uttered; voir dire, opening, direct examinations, and closing argument.

2. Craft direct examinations of the victims to recreate the reality of the crime. Crafting a direct means much more than writing out the questions and prepping based on them. It's taking victims through sensory detail- smells, sounds, physical sensations- that drives home the reality so that jurors won't gloss over it or accept defense arguments that it was concocted.  This works only when victims are treated with dignity, support and compassion. Thankfully, it's also the right thing to do.

3. Appeal to common sense and fight myths.  The defense's strategy is to appeal to oft-cited but baseless myths. They'll suggest Mike McQueary didn't see a child being raped because he didn't intervene. But the idea that even most of us would intervene in a situation like that is preposterous. It's tempting to say "I would have beaten Sandusky and saved the boy," but the fact is none of us know how we'll react until we face a traumatic event. Ask any combat veteran.

They'll suggest the kids McQueary and the custodian before him saw being raped don't exist because they haven't come forward. Nonsense- very few child victims ever report, and if the children in question are aware of the case and haven't come forward, it's for common sense reasons. They'll suggest the victims are lying for a civil payoff, or because they are "troubled." Garbage. "Troubled" is why Sandusky targeted them through Second Mile- they were less likely to report or be believed.  The idea that its typical for individuals to falsify allegations and endure the the process of criminal litigation for money or spite is baseless.  It almost never happens, least of all in male on male cases. Finally, to suggest that three high ranking officials at PSU would never have acted as they did when facing allegations that threaten the football program is laughable.

4. Corroboration.  This is not a "he said-she said" case; indeed, any good sex crimes prosecutor knows there is no such thing. As a mentor Victor Vieth taught me years ago, there is always corroboration if investigators and prosecutors are willing to think creatively and then dig for it. Witness' memories- when the witnesses are handled correctly- are goldmines of information that can be independently verified. In any event, victims are carrying enough of a burden during the litigation process. No case should rest solely on the testimony of a victim; this is unnecessary and the sign of a sloppy, lazy prosecution.

5. Point. While I wish I could say I learned this on the job, I read it in Scott Turow's Presumed Innocent long before I had a law degree. In it, Turow's protagonist describes a whiskey-breathing, grizzled vet of an ADA who suggested it to him. I never failed to implement it. Point at the defendant when you make your opening statement and your closing argument. Point at him, look him in the eye, and approach as far as the judge will allow. "If you don't have the courage to point, you can't expect them to have the courage to convict."

Godspeed, Mr. McGattigan and team.

A widely known child protection and anti-violence against women advocate, legal expert, author and public speaker, Roger Canaff has devoted his legal career to the eradication of violence against women and children.

Roger Canaff: Anti-Violence Advocate, Child Protection Specialist, Legal Expert Blog: WCSV (Women, Children, Sex, Violence: Outcry, Analysis, Discussion)

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