ANALYSIS

Courtrooms are in many ways public theaters. Parties come to court to resolve disputes, but there's another aspect to their work. They also show how the power of the state is appropriately used. When the conflicting parties are the state and a criminal defendant, courts explain why punishment is just. 

Wes Oliver is a law professor and director of the Criminal Justice Program at the Duquesne University School of Law.

In Bellefonte, Pa., on Tuesday we saw just that public function at work in Jerry Sandusky's sentencing hearing. The practical effect of any sentence Judge John Cleland could have handed down was not in doubt. It was clear going into this hearing that Sandusky would get life. 

The sentencing hearing was thus an opportunity for society to express its outrage at the crime committed, for the defendant to respond to the public, and for the judge to explain the sentence. 

Prosecutor Joe McGettigen and three of the victims very powerfully described the harm Sandusky inflicted. McGettigen spoke in a measured way, noting that Sandusky's roles at Penn State and with the Second Mile charity provided a cloak for his real goal of molesting children. 

The victims who spoke were all clearly emotional, but were measured in their combination of anger and sadness.  Their impact was profound, but not in a way that could have affected the sentence.  In some ways their statements had a more profound meaning than adding five, 10, or even 100 years to this life sentence. This forum provided them an opportunity to tell their abuser, with the support of the community and the apparatus of the state, how his crimes affected them.  This was a vehicle for them to express their outrage.  

This was also an opportunity for Sandusky to respond to the community's condemnation. His rambling remarks, however, appeared to be an unsuccessful effort by an emotionally unstable man to preserve his legacy. At one point Sandusky stated, "I've been kissed by dogs. I've been bitten by dogs." At another point he invoked both the words of Martin Luther King Jr., and the words of Scripture.  "I've been to the mountain top," he said.  "I've seen the valley of the shadow of death." At other times, he seemed to be spouting poetry about prison life.

Judge Cleland's remarks quite appropriately explained society's reasons for sentencing Sandusky as he did. His sentence needed to protect the community, reflect the gravity of the crimes, the defendant's hope for rehabilitation, and the effect of the crimes on the community. As expected, his sentence demonstrated his interest in appearing measured and thoughtful even in punishing a serious offender. Even speaking about a sentence of dozens of years for a 68 year old man was nonsensical, he noted, observing that there is "no place in the law for sentences to be an instrument of vengeance." 

But Cleland needed to express the community's outrage, which he did masterfully. He noted that Sandusky betrayed those who trusted him, that his crimes were an "assault to their psyches and souls." 

The entire proceeding struck exactly the right tone. Unlike the post-verdict celebration, Tuesday’s sentencing appropriately reflected the outrage of the victims and the community and left the impression that the legal process is one of logic and reason, not passion and vengeance.

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ANALYSIS

Jerry Sandusky's criminal trial did not draw the attention of the nation because there was some uncertainty about the outcome.  And though there is little reason to doubt he will be ordered to spend the rest of his life in prison when he is sentenced on Tuesday, our continuing interest in this case has little to do with the issues the court has to decide. 

Wes Oliver is a law professor and director of the Criminal Justice Program at the Duquesne University School of Law.

Based on the jury's finding of guilt on 45 of the 48 counts, the former Penn State defensive coordinator and founder of the Second Mile charity for underprivileged kids could be sentenced to a maximum of over 400 years. But the judge is not required to sentence him to anything near that. Six of the offenses carry mandatory minimums of 10 years. This does not, however, mean that Sandusky must receive a minimum of 60 years in jail.  The judge will have to determine whether Sandusky serves his sentence for these individual offenses concurrently -- meaning simultaneously -- or consecutively.

None of the other offenses has such a low-end boundary, so the 68-year-old Sandusky could theoretically be sentenced to as little as 10 years. 

Those unfamiliar with the criminal justice system often find it bizarre that a defendant could serve time for two or more crimes at once.  After all, a prisoner serving two 30-year sentences at the same time is being punished the same as a person serving the same sentence for a single crime.  Practical realities, however, require this common occurrence.  If defendants were not routinely able to serve sentences simultaneously, a very substantial number of prisoners would be serving life sentences for offenses far from the worst in our criminal codes.

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Sentencing guidelines in many states like Pennsylvania instruct the judge on the appropriate sentence for each individual count. For instance, the judge is required to give Sandusky an indeterminant sentence of 10 to 20 years on the involuntary deviate sexual intercourse counts.  But judges in Pennsylvania, as is common throughout the country, have almost absolute discretion to determine whether the sentences for those counts will be served consecutively. So the judge's determination of which sentences should be served consecutively will thus be the single greatest factor determining the actual number of years Sandusky receives.

That means that Judge John Cleland has the discretion to give Sandusky a sentence that would permit him to be released after 10 years, just as he has the discretion to give him a sentence that could require him (in theory) to spend over 400 years in prison.  Given the number and seriousness of the counts, the lower end of this range seems improbable -- for any judge.

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For some judges, the upper end of this range would be an attractive option.  But anything greater than 25 years would mean a life sentence as a practical matter. In other words, Sandusky's life would not be changed, practically speaking, by adding another 375 years to a 25-year sentence.  A judge could see a multi-century sentence as a way to send a strong message to would-be child molesters without changing either a defendant's punishment of the state's cost of incarceration.  More cynically, a judge presiding over a case with this type of profile could see a multi-century sentence as a way to grab headlines and increase his reputation as someone who dealt severely with America's best-known serial pedophile.

But Cleland is not a grandstander.  We saw that time and again throughout the course of the criminal proceedings.  He thoughtfully considered defense motions.  Despite community pressure, he rejected a prosecution request that Sandusky not be permitted to sit on his back porch while out on bond.  His tone and demeanor were measured throughout one of the most closely watched criminal cases in the history of the country.  His sentence may approach the century mark, but a maximum sentence seems unlikely. 

Nothing about Cleland -- or the seriousness of the facts of this case -- suggests, however, that Sandusky will receive a sentence of less than 25 years.  And that means a life sentence.  So the only real question is how he will serve out that sentence.  The Department of Corrections makes this determination and thus has a much larger role than Cleland in determining what the rest of Jerry Sandusky's life will be like.

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A battery of tests will be conducted to determine Sandusky's mental state, physical condition, his risk to others and the risk that others pose to him.  He will then be classified for a level of security – minimum, medium, close or maximum.  No one factor is determinative, though the serious nature of the offenses will certainly be a factor.  The availability of housing meeting his security level will determine his specific placement and in making that determination, there is no official policy to prefer a facility close to the inmate's family.  He could be placed anywhere in Pennsylvania.

The Department of Corrections will further have to determine whether measures are needed to protect Sandusky from other prisoners.  If inmates express concern for their safety, the department takes that into consideration. But  Sandusky has expressed a desire to be in the general population, at least at his present facility.  If there is a safety concern, he could be given an individual cell, but otherwise remain in the general population. Or he could be placed in what is known as a special needs facility.  In such facilities, there is greater supervision of the inmates due to their risk of victimization because of factors like age, or mental impairment.  He could also be placed in administrative segregation for his protection, which would amount to solitary confinement for 23 hours a day. The department does not, however, have a presumption that child sex offenders will be at risk for victimization merely because of their crimes.

The Department of Corrections, over the next month, not at Tuesday's sentencing hearing, will determine what the rest of Jerry Sandusky's life is like.  Just as the result of his trial was fairly certain, so is the practical result of his sentencing.  Practically, the few issues that remain relate only to the level of his custody and will not be affected by his sentence.

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It is not surprising, though, that there is still considerable interest in Tuesday's hearing.  Despite its foregone conclusion, Sandusky's trial drew an international audience.  Our interest in the legal proceedings against Sandusky was never really about the law at all.  The Bellefonte, Pa., courtroom provided merely a backdrop for our view of this human tragedy.  Tuesday's sentencing hearing provides the last glimpse that focuses on Sandusky's role in the tragedy.  Soon enough we will turn our attention, with the trial of Penn State officials, to the role of university officials and, as a context for understanding their actions, the part played legendary Penn State football Coach Joe Paterno in this tragedy.  

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ANALYSIS

Updated at 4 p.m. ET Aug. 7: The death penalty is often regarded as a relic of a bygone era, invented in a world before prisons, when branding, maiming and flogging were the lesser options. Its role is often debated in a modern world in which incarceration rather than physical pain is the norm.

Wes Oliver is a law professor and director of the Criminal Justice Program at the Duquesne University School of Law.

That Jared Lee Loughner, who shot then-Rep. Gabrielle Giffords, D-Ariz., and many others in Tucson early last year, pleaded guilty Tuesday shows why the death penalty may be allowed to linger on the books.

Loughner chose a certain life sentence over the risk of a death sentence. That threat — the potential of facing death — avoided a costly and highly publicized trial, saving the victims and their families from a painful ordeal and the judicial system from expending extraordinary resources.

Without the threat of the death penalty, there likely wouldn't have been a plea deal — no reasonable prosecutor would be willing to risk letting Loughner see the light of day outside a jail cell. And no reasonable defense lawyer would recommend that his client accept the maximum sentence permitted by law. 

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The child sexual abuse case against former Penn State assistant football coach Jerry Sandusky offers an excellent comparison. With the prosecution unable to offer anything more — or less — than a life sentence, the defense could do nothing other than recommend that Sandusky roll the dice, because there was no downside to letting the jury decide. 

Loughner risked a very different outcome if he didn't reach an agreement that eliminated his risk of execution.

From the prosecution's perspective, a life sentence achieves many of the goals of a death sentence. An effective life sentence — whether it is phrased as a life sentence, several life sentences or a sentence of several hundred years —is no lenient alternative to death. 

And such a sentence protects society. Our penal institutions are capable of detaining men on death row for many years, meaning those prisons can hold similar men into their geriatric years. 

There are also financial advantages to life sentences. Counterintuitively, life sentences are typically cheaper than death sentences because of the greater complexity of capital cases. 

Opponents of the death penalty contend that it legitimizes violence, but it offers substantial incentives for defendants to reach agreements that avoid extraordinarily expensive and psychologically taxing trials. The criminal justice system's strong interest in such alternatives may mean the death penalty lingers long after there's a consensus that there's a better way to punish violent criminals.

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ANALYSIS

While relatives of the victims of last week’s movie theater massacre in Aurora, Colo. – and the public at large – are understandably fixated on why the crime was committed, the criminal justice system to a large extent will ignore that question in determining guilt and punishment. 

It appears that the alleged shooter, 24-year-old James Eagan Holmes, acted alone, so there apparently is no conspiracy or anyone else directly to blame. Nor is there any indication that this was the act of a terrorist organization or individual attempting to advance a political agenda of some sort. The crime allegedly was committed by a single human being who explained himself to police as being a character from the Batman comics – the Joker.  

Theater massacre suspect appears in court

But in deciding whether a person should be punished – and how much – the law will inquire into a very limited set of questions. 

The first is guilt. With a multitude of witnesses inside the theater able to testify about the black body armor worn by the gunman and Holmes arrested just outside the theater moments afterward wearing an identical ensemble, defense attorneys appear to have little chance of persuading a jury that their client did not pull the triggers of the weapons – all of which he had legally purchased – used in the crime. And the fact that he apparently booby-trapped his apartment immediately before the slaughter, with the apparent intent of creating a diversion, only adds to the evidence against him. 

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.

If Holmes is convicted in connection with the crime, an insanity defense will almost certainly be contemplated. But the legal question raised by an insanity defense is relatively straightforward: Did the defendant understand the difference between right and wrong? 

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John Hinckley, Jr., escaped criminal punishment when he attempted to assassinate President Ronald Reagan to impress the actress Jodie Foster, but in the wake of his successful insanity defense, legislatures made it considerably more difficult for defendants to prevail on the grounds of mental incapacity. Under the law that existed at the time, defendants were not legally responsible even if they knew an action was wrong if they could show they were unable to resist the impulse to commit the act. After Hinckley's case, a number of states, including Colorado, amended their laws to permit a successful insanity defense only if the defendant did not know the difference between right and wrong. The upshot of this more stringent requirement is that defendants rarely prevail when they claim insanity.  

So, if Holmes’ attorneys pursue an insanity defense, the jury will be asked only one question: Did he know it was wrong to try to take the lives of scores of people?  If the answer to that question is ‘yes,’ then the question becomes: What degree of homicide did he commit. To determine this, the jurors must decide whether he intentionally and deliberately killed his victims – first-degree murder – or whether he merely knowingly or recklessly killed them – second-degree murder. The degree of planning involved in this case, however, leaves no doubt that the perpetrator intended the results. 

Photos: Shooting at Batman screening in Colo.

There will then be a final question about punishment. Colorado has the death penalty, though death sentences are quite rare in the state and there has only been one execution in 30 years. Nevertheless, there is the possibility of a death sentence in this case.  Under Colorado law a jury may return a death sentence if the defendant killed more than one human being in a single episode.  Almost certainly he did. 

In a capital case – and it seems likely this will be a capital case – the defense is permitted to present anything in mitigation. That means that the defense may attempt to explain why the defendant attempted to take the lives of scores of innocent persons, but it is certainly not required to do so. It can focus on any aspect of his life in an effort to save it. And the prosecution only has to demonstrate that the mass killing occurred to obtain a death sentence. Nothing requires either side to present evidence of what motivated this man before incarcerating him or even executing him. 

Read more legal analysis by Wes Oliver

We often think of natural disasters as tragedies that defy explanation. Tragedies caused by humans can most often be explained, though, and the criminal justice process often provides that explanation. Motives are often offered to demonstrate a defendant's intent to kill.  

In the case of James Holmes, it seems likely that circumstantial evidence alone will demonstrate his desire to take an extraordinary number of innocent lives, and that his motives will defy any traditional explanation, such as personal animosity or greed. But the law does not require prosecutors to show motive, merely the intent to kill.  And that may be all that anyone will be able to show for this senseless act.   

As a result, any trial is likely to leave victims, and their families, with nearly as many unanswered questions as they have now.   

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ANALYSIS

The law is pretty clear on a lawyer's ethical duty when he makes statements regarding his clients. The lawyer may neither divulge confidences nor make statements adverse to the client's interests.

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.

The rule is clear enough, but it is violated all the time in innocuous ways. Lawyers go home to their wives and describe the horrifying day they had. They gather with other lawyers in corridors of courthouse or in local watering holes and tell stories about their cases. Arguably, lawyers could be seeking advice from their professional colleagues, thus including them in the attorney-client privilege, but usually they're just telling stories.

In short, lawyers do describe to their friends facts surrounding their cases, and those discussions often evaluate the strength of their cases. Ideally, and most often, they omit the names of their clients, but their listeners are frequently able to identify them. One very famous lawyer routinely jokes about his former client's guilt. Alan Dershowitz said to his criminal law class at Harvard: "If O.J. does it again. ... By that, I mean gets another speeding ticket."

Because few lawyers absolutely observe the prohibition on making statements against their clients' interest, it's often unclear precisely where the practically accepted line is. Part of the reason there's a gap between the categorical prohibition on lawyers' making statements against their clients' interest and the realities of lawyers' lives is enforcement. The odds of a communication between an attorney and his wife ever impairing his client's interest are remote. The odds that a client will ever learn of his lawyer's barroom discussion are slim. So for a lot of lawyers, the rule against making a statement against his client's interest has a practical exception — if the odds are low enough that his statement could harm his client's interest, he or she will often talk.

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It's not appropriate, and I don't teach my students that this is acceptable, but for a lot of lawyers it is the reality. And it would be difficult if not impossible to police the actual rule that forbids any negative statement.

Friday, however, Joe Amendola told a crowd of reporters in the Centre County Courthouse awaiting the verdict that he would be shocked if his client was acquitted of all the counts.

This after months of denying Sandusky's guilt. This after an impassioned and excellent closing argument in which he explained how all the alleged victims had fallen prey to investigators' coaching and then sought to cash in.

And, perhaps most significantly, after the judge issued a gag order expressing forbidding anyone in the case from commenting on Sandusky's guilt or innocence.

This wasn't a comment to fellow lawyers who are unlikely to have any reason to communicate the information to others. This wasn't a private communication to his wife. His statements were made in a mini-press conference in the courtroom where his client had stood trial and where the jury could come and announce its verdict at any time. His comments were made to reporters who have the right — arguably the obligation — to report his words to a national audience that has been captivated by this case.

This wasn't a comment that could never harm his client, in other words. There could be a hung jury, necessitating another trial. And there will surely be civil lawsuits. Amendola's comments, which will be heard throughout Centre County and around the country, could easily prejudice his clients' future interests.

Finally, and perhaps most significantly, this isn't a comment for which there is no ready enforcement mechanism. It is unlikely that Sandusky will file a complaint with the ethics board. But Judge John Cleland, who maintained very strict control over this trial, issued a specific order forbidding comments on guilt or innocence.

Certainly, he must have anticipated the prosecution's making disparaging comments about Sandusky, but his order didn't allow an exception for Sandusky's lawyer to suggest his own client's guilt. Cleland may well regard this as a breach of the decorum he has worked so hard to maintain. And unlike an ethics board, he has the ability to act swiftly and the power to hold Amendola in contempt.

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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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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 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.

Defense abruptly rests without calling Jerry Sandusky

Full coverage of the Jerry Sandusky trial

Legal analysis by Wes Oliver

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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Pat Little / Reuters

Jerry Sandusky arrives Thursday at the Centre County Courthouse for the fourth day of his child sex abuse trial in Bellefonte, Pa..

ANALYSIS

While the prosecution didn't rest Thursday, it is very clear that the bulk of the commonwealth's evidence against Jerry Sandusky has been presented. Given the surprisingly fast pace of the prosecution's case, the judge canceled Friday's proceedings, leaving the jury with some disturbing testimony to consider over the Father's Day weekend.

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.

This trial has been difficult to sit through at times. The acts alleged are horrific, and the testimony took an obvious emotional toll on the jury.

Despite the very strong case against Sandusky, the defense had strong moments on cross-examination. It has skillfully pointed out inconsistencies in the witnesses' testimony and has raised substantial questions about why some grown adults would continue to have friendly relationships with the man they now say abused them.

Nevertheless, the question remains: Why would so many witnesses come forward with similar stories? As Bob Costas stated it in the TV interview the jurors heard: If these witnesses are all lying, Sandusky must be the unluckiest guy any of us has ever known.

Jurors have long weekend to consider graphic evidence against Sandusky

Their stories weren't identical. In fact, had they been, one would suspect collusion. But there was a small detail that ran through all but one of the accounts: All but one alleged victim described Sandusky's first having touched him on the knee or the thigh as they rode in Sandusky's car.

If a group of people were going to concoct a group lie, one would expect them to coordinate the big details, not the small one. They were all, except one, in unison in describing this as Sandusky's first uncomfortable touch. In the case of one alleged victim, the prosecution didn't bring out this fact on direct examination — we learned this unifying fact on cross-examination.

Full coverage of the Jerry Sandusky trial

Legal analysis by Wes Oliver

Almost any witness will be vulnerable to cross-examination that casts some doubt on his or her testimony, and Sandusky's alleged victims were no exception. But given the number of them, their consistency, the independent witnesses who saw Sandusky in the Penn State showers and the defendant's own words in the letters he wrote to one victim, the prosecution has presented a very strong case.

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ANALYSIS

It was an odd moment in court Wednesday when Jerry Sandusky's lawyer was shut down while cross-examining Mike McQueary's father.

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.

Defense counsel Karl Rominger started by asking John McQueary whether he remembered his testimony during a preliminary hearing in the criminal case involving perjury charges against former Penn State Athletic Director Tim Curley and former senior vice president Gary Schultz. John McQueary didn't recall that testimony.

This isn't a terribly rare occurrence. Witnesses who have testified frequently forget appearances. Those new to litigation don't always remember the names the legal system assigns to the proceedings in which they testified.

When John McQueary testified that he didn't recall the preliminary hearing, Karl Rominger showed him the transcript of his testimony.

Read the full transcript of the December 2011 hearing (.pdf)

This is a common tactic, and it usually works quite well. But McQueary still didn't recall the proceeding.

Lawyers on cross-examination are accustomed to such eventualities. One easy response is to restate the question, vaguely describing the earlier proceeding: "Did you recall testifying in December that ..."

Rominger, however, seemed like a deer in the headlights. He consulted his co-counsel, Joe Amendola. He then tried to ask McQueary again about the preliminary hearing, specifically referring to the proceeding McQueary said he couldn't remember.

It didn't help that Rominger might have confused McQueary by mischaracterizing the hearing when he first asked about it, calling it "this other grand jury in Dauphin County." The December hearing wasn't, in fact, a grand jury session — it was a preliminary hearing before a judge in a separate but related case.

Alleged victim testifies Sandusky threatened him unless he kept quiet

Full coverage of the Jerry Sandusky trial

Judge John Cleland was clearly frustrated with Rominger, who seemed lost as how to proceed. On Tuesday, he had demonstrated similar frustration with Rominger, whose cross-examination seemed to go nowhere.

On Wednesday, Cleland pointedly instructed Rominger that the witness didn't remember this hearing and to move on.

Judges often give counsel some latitude when witnesses are confused, but they have extraordinary discretion to limit the scope of cross-examination. They have not only to ensure that each side gets a fair shake but also to manage the case, to keep the case moving. Lawyers who appear to ask meaningful questions and appear not to waste the court's time are given more leeway when they get caught in a tough spot.

Rominger's performance Tuesday may have come back to haunt him Wednesday.

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Gene J. Puskar / AP

Former Penn State assistant football coach Michael McQueary arrives Tuesday at the Centre County Courthouse to testify in Jerry Sandusky's child sexual abuse trial.

ANALYSIS

Jerry Sandusky's lawyers failed to blow holes in the testimony Tuesday of former Penn State assistant football coach Michael McQueary, allowing prosecutors to score a big win in their child sexual abuse case.

Beginning with its opening statement, the defense has tried to demonstrate that the alleged victims have been coached to implicate Sandusky and have financial motives to make up their stories. 

McQueary powerfully undermined that theory Tuesday. If he saw Sandusky in the shower with a young boy in a compromising position — and the jury will not doubt that he did after his testimony — then it seems much less likely that the young men were motivated by greed or prosecutorial influence. 

Ex-coach McQueary testifies 'no doubt' he saw Sandusky having sex with young boy

Full coverage of the Jerry Sandusky trial

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.

Rather than zero in on significant discrepancies in McQueary's accounts of when the incident occurred — given in previous testimony before a grand jury and in a hearing in December — the defense started off with a weak point: that McQueary previously claimed to have seen Sandusky and the boy in the shower two times rather than the three he described Tuesday — once in a mirror, again directly and a third time after he slammed a locker door to make it known that they were being observed.

Sandusky's lawyers also failed to confront McQueary about his reluctance to intervene in the situation.

McQueary has said he did not ask Sandusky what was going on and did not call the police the night of the incident. McQueary, in fact, volunteered the fact that he did not physically intervene during his cross-examination Tuesday, but the defense seemed almost oblivious to the gift McQueary handed them amid the devastating answers he provided to their other questions. 

When Sandusky's lawyers did get around to asking McQueary about the inconsistent dates he has offered in the past, their pattern of questions allowed him to give an easy explanation. 

Rather than confront McQueary directly with his testimony at a preliminary hearing during which he expressed absolute certainty about the date, the defense simply asked about his prior testimony in general. That let McQueary remind jurors that in interviews, he has also expressed uncertainty about whether the events occurred in 2001 or 2002 and declare that he did not dispute the prosecution's timeline of events. 

Perhaps most seriously, the defense failed to establish that McQueary could not have seen the most serious crimes he believes he saw because of the relative height of Sandusky and the young man he saw in the Penn State shower.

At a hearing in December involving perjury charges against former Penn State athletic director Tim Curley and former senior vice president Gary Schultz, different lawyers skillfully pointed out that McQueary could not have seen any sex unless Sandusky had been holding the boy in the air. 

The failure of Sandusky's lawyers to address that testimony may lead the jury to conclude that Sandusky did engage in sex with the young man — even though at the end of the Curley-Schultz hearing, it seemed clear that McQueary's testimony was insufficient to prove that any sex occurred. 

Finally, the defense was unprepared for McQueary's cross-examination. Apparently expecting him to say yes, defense lawyer Karl Rominger asked McQueary whether he had played in a golf tournament run by Sandusky's foundation after having witnessed the alleged shower ecounter. But McQueary said he did not play, and Rominger was not ready with documentation to challenge him.

McQueary's account Tuesday had real problems, but it was not effectively challenged, and his testimony ended up being a slam dunk for the prosecution. 

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