ANALYSIS

BELLEFONTE, Pa. — If you hadn't seen the evidence and were to be plopped in the jury box of the Sandusky trial for only the closing arguments, you would have to return a verdict for the defense.

Wes 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.

In Pennsylvania, the defense goes first. Even though the defense managed to score only modest points during the course of the trial, you couldn't tell it from the closing argument. Joe Amendola told a story about how one of the accusers prompted a perfect storm of investigators coaching alleged victims who were motivated by civil suits.

The first alleged victim, Amendola told the jury, reported to his teacher that Sandusky fondled him outside his clothes. This young man, however, admitted that he wanted to get out of going with Sandusky to spend time with his friends.

When the matter was reported to Children and Youth Services, investigators told the alleged victim that they thought more had happened than the young man was willing to report. Amendola told the jury that once investigators got a more incriminating story from this alleged victim, they began looking for other young men. Investigators then told the other young men that there were other victims out there who had reported an escalating pattern of touching culminating in oral sex, his argument continued.

It didn't hurt Amendola's argument that state troopers denied during the trial that they coached the alleged victims, only to have this revealed to be a falsehood in documents and recordings turned over to the defense during discovery.

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Amendola maintained the theme he presented from the beginning:  Those who cooperated with the police and who testified in this proceeding were coached and can now see a financial payoff.

The prosecution should have had an easy response. There were eight alleged victims. Could so many people fall under the spell of police coaching? There were two independent witnesses, Mike McQueary and the janitor whose colleague claimed to have seen Sandusky performing oral sex on a young boy. Finally, there were Sandusky's own words in the Bob Costas interview and in love letters he apparently wrote to one of the victims, copies of which he kept in his Penn State office.

But the prosecution didn't start with that story in its closing. Joe McGettigan spent the first 35 minutes of his hourlong closing addressing the defense's closing statement. He was well into his argument before he even began to talk about the heart of the case.

McGettigan spent two or three minutes explaining how leading questions are permitted on cross-examination. He explained that some of his witnesses may not have performed so well because they were nervous or tired because they had to testify at the end of the day.  He did all of this before he even began summarize the very powerful evidence that had been presented in the case.

When he finally got around to talking about the facts of the case he had very effectively presented, the bulk of his argument was over, and he spoke in a very summary fashion about the pattern of the predatory pedophile he believed Sandusky to be. He observed that later alleged victims described more serious conduct than others but didn't describe the testimony that made them so credible. He didn't observe that all but one alleged victim described Sandusky's earliest inappropriate touches as a hand on the knee or thigh in a car headed for Sandusky's house.

Perhaps most significantly, he didn't reintroduce the jury to some of the compelling evidence in the case — the letters in Sandusky's own hand to one of the victims or the bizarre contract for one victim to spend time with Sandusky.

McGettigan was on the defensive during this entire closing. He even spent time defending McQueary's performance on the stand. By all accounts, the defense didn't dent McQueary's testimony at all. Yet McGettigan explained that while the defense made McQueary out to be confused or a liar, he was an honest witness who didn't act as he should have the night he found Sandusky in the shower that night in 2001 with a young boy.

If there is any doubt in the jury's mind about McQueary's testimony at this point, it is only because McGettigan put it there in closing. 

McGettigan seemed disorganized throughout this presentation.  Shortly before he closed, he said to the jury that he thought he was done but needed to check his notes. He did so and then decided to close the argument with a dramatic moment. He walked behind Sandusky and pointed at him as he made his final points. There were a variety of opinions on the effectiveness of this tactic, but Sandusky turned, looked him in the eye and then looked at the jury.

The defense theory of the case is somewhat implausible, but Amendola presented his theory in a very coherent and believable fashion that accounted for all the evidence. In spending most of his time addressing Amendola's theory, the prosecutor may have telegraphed to the jury that the defense presented a reasonable interpretation of the facts.

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