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Analysis: Faltering defense hurt Jerry Sandusky

Gene J. Puskar / AP

Jerry Sandusky leaves court Wednesday in Bellefonte, Pa.

ANALYSIS

The defense ended with a whimper Wednesday in Jerry Sandusky's trial in Bellefonte, Pa.

At one point, it appeared as though the defense might get some traction. It called investigators to the stand who testified that they never informed victims about complaints from other victims. Recordings of the investigators' own interviews revealed that the victims had been coached.

Wes OliverWes Oliver is a professor at Widener University who teaches criminal law and procedure. This fall he will join the faculty of the Duquesne University School of Law as a professor and director of the school's criminal justice program.

It would likely not seem unreasonable to most jurors for police to let victims know that there are others. Jurors may even have little problem with letting victims know some specifics of other complaints.


Jurors, however, should wonder why investigators tried to hide their methods of making alleged victims comfortable speaking. They should ask themselves what else the investigators told those men and didn't report. The defense scored some real points when the state's investigators denied techniques that they were revealed to have used in documents that were turned over to the defense before trial.

Other than that, the defense case was marked by missteps and largely tangential testimony.

There was a parade of witnesses who knew Sandusky as a neighbor, a colleague or a mentor. The rules of evidence place strict limits on the testimony of character witnesses. Formally, they are limited to addressing the defendant's reputation for honesty, peacefulness and law-abiding character. In introducing character witnesses, lawyers are able to describe how the witnesses know the defendant.

That process of introduction gave Sandusky's lawyers an opportunity to tell the jury that his colleagues never knew of any misconduct with children. It also gave those he mentored an opportunity to tell the jury that he hadn't molested them as children.

Character witnesses don't hurt the defense, but they can add only so much. The fact that there are people who never saw Sandusky do anything inappropriate isn't inconsistent with his guilt.

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And there were missteps during the defense case that really hurt.

Dr. Jonathan Dranov — who met with one of the prosecution's star witnesses, former assistant football coach Michael McQueary, after an alleged incident in a Penn State University locker room shower — had been expected to undermine McQueary's account. But the opposite happened. Dranov bolstered McQueary's testimony, describing him as having been very upset in describing the incident.

More damning, however, was that Dranov testified that McQueary reported hearing "sexual sounds" in the shower that night. At a preliminary hearing in December in a separate but related perjury case against two for top university officials, a lawyer cross-examining McQueary got him to admit that he heard two, at most three, "slapping" sounds. The defense's cross-examination of McQueary last week didn't confine his testimony to two or three slaps, and its examination of Dranov left the jury with testimony that "sexual sounds" were heard that night.

Finally, in calling an expert who testified that Sandusky had a personality disorder that could explain away some of his behavior, the defense had to let a prosecution expert examine Sandusky.

The defense expert's testimony was worthless at best and harmful at worst — he testified that he himself may suffer from the disorder, a disorder that he was unable to differentiate from the personalities many people have seen in their friends and colleagues.

By contrast, the prosecution's expert — a very sharp, impeccably credentialed, well-spoken psychiatrist — discounted the defense expert's theory and concluded that Sandusky's personality profile was consistent with a psychosexual disorder, with a focus on adolescents.

In exchange for raising the possibility of "histrionic personality disorder," the defense got a prosecution expert who said the defendant fits the profile of a pedophile, in other words. This was not a good trade.

The defense had quite the task facing it when it started presenting its case. It doesn't seem to have raised a reasonable doubt. On the whole, it seems to have aided the prosecution.

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