Monday, June 11, 2012

Opening Statements in the Sandusky Child Sex Abuse Trial: Saying it Without Saying it.

The Opening Statements for the Jerry Sandusky child sex abuse trial began this morning.  You probably remember that the Penn State University (assistant) football coach is charged with 52 counts alleging that he abused 10 boys over a span of 15 years. 

There was some pretty graphic testimony from Michael McQueary at the Grand Jury proceeding in this case, and McQueary is expected to be called for testimony during this trial.  McQueary’s testimony is pretty damaging for Sandusky, as he has previously testified that after hearing “rhythmic slapping sounds,” he walked in to the locker room shower area and found Sandusky sodomizing a young boy.  However, apparently there is a timeline dispute regarding the allegation – my understanding is that McQueary testified that the locker room incident happened in 2002, but the prosecution in the case says that the locker room incident happened about a year earlier.  This timeline discrepancy is something defense attorney and media loving attorney Joseph Amendola is expected to highlight.

If you don’t remember Joseph Amendola’s name, you should.  Specifically, you should remember to never listen to his advice regarding pre-trial interviews.  For some reason (eh-hem, Cough!...personalgainthroughmediaattention…Cough!) Amendola allowed Sandusky to go on the Rock Center and for his client to be cross examined by Bob Costas in front of all of America.  For a re-cap of those events, see the following breakdown from some guy who runs a blog and thinks he knows everything:

Concerning the more recent events, and specifically the opening statements today, there are a couple of things I’d like to share with you.  First is “saying something without saying it” and Second is just a general gripe about jury trial procedure.   

Concerning “saying something without saying it,” let me first say that there are some rules to which lawyers have to abide when giving an opening statement.  We can’t argue.  Argument is reserved for closing statements (which is why they are sometimes referred to as “closing arguments”).  Rather, an opening statement is supposed to be a time where the lawyers give the jury an idea of what the evidence will be.  So instead of saying “Sandusky is a child molester” we are supposed to say something like “the evidence will show that Sandusky is a child molester.”  See the difference?  Good.

One of the things that a prosecutor is NOT supposed to say is “Put yourself in the shoes of these victims.  How would you like it if YOU were the one this man diddled?”  That is argument in the most pure sense, and is inappropriate argument for a courtroom because it seeks to personally inflame the jurors.  But is sure is effective if you can get away with it (assuming the jury is leaning toward the prosecution at the point of the argument – otherwise it may backfire).  Let’s see how state attorney general Joseph McGettigan handled the situation today…

Per MSNBC:  “Joseph McGettigan, the deputy state attorney general who is leading the prosecution, said in his opening statement that the case is about ‘systematic behavior by a predator.’

McGettigan told the jurors that they would be hearing from the alleged victims. All of them are now adults, but he asked the jurors to ‘bring your insight (and) understanding of the way children experience things and react to things.’

‘They were boys. They didn't understand why this happened to them,’ he said.”

Brilliant.  Just brilliant.  Seriously – McGettigan got the jury to place themselves in the shoes of the alleged victims without directly asking them to do so, thereby opening himself up to a very legitimate objection from the Defense.  Instead, he spoke about how the Jury was to determine credibility of the child witnesses, which is certainly one of the jobs for the jury.  Asking the jury to “bring their insight and understanding of the way children experience things and react to things” puts them in the place of children, and asks, indirectly, for the children to imagine that they are “experiencing” abuse from the alleged perpetrator.

It is a fantastic way to evoke the desired mental state in jurors without evoking an objection from the Defense.

On a slightly unrelated note – it is significant that the prosecution gets to go first in opening statements.  They open first, and then the defense gets to give their opening statement.  The prosecution also get to go last for closing arguments.  Defense attorneys often fuss about this, because it means that the prosecution gets both the first and last word.  We expect juries to remember what is said first and last, to a greater degree than what is sandwiched in the middle.  So defense attorneys will complain about their arguments being dwarfed because the prosecution gets desirable argument real estate.  To which, I say: No excuses.  Play like a champion.

It’ll be interesting to see how this Sandusky trial plays out.  I’ll keep you posted if any more interesting legal tidbits occur.

Simms & Reed, PLLC.  Results.  As fast as the law will allow.

No comments:

Post a Comment