Sandusky's Lawyer Was Painfully Inept

Editor’s note:  Here is another excerpt from Mark Pendergrast’s forthcoming book, The Most Hated Man in America: Jerry Sandusky and the Rush to Judgment. Again, Mark refers people to this petition at Change.org seeking a new trial for Sandusky.  Please sign the petition and leave a detailed comment, especially if you know Sandusky personally or have other reasons to doubt that he received a fair trial. To be "newsworthy" it is important that signers include high-profile people, such as former Penn State football players or coaches, who will explain who they are and why they are signing.

 

by Mark Pendergrast

For BigTrial.net

 

On Monday, June 11, 2012, Joe McGettigan opened the trial of Jerry Sandusky with an impassioned speech to the newly picked jurors about the “serial predatory pedophile” whom they should convict. 

 

McGettigan, then 64, a native of Philadelphia, had carved out a reputation as an aggressive, successful prosecutor.  “He is smart, tenacious, and well-prepared,” wrote one journalist, who also called him a pugnacious street brawler.  “He will steamroll over anyone who gets in his way,” another lawyer observed, adding that McGettigan was a “true believer” who thought “all criminals deserve life sentences.”

 

 He was known as “Hollywood Joe McGettigan” because of his penchant for dark glasses, garish ties, and his serving as a legal consultant and writer for a one-season television series.  In the press, he had already called the Second Mile “a victim factory.”[i]

Now McGettigan told the jurors that the young men who would testify had endured “years of victimization,” and that, although the molestation had occurred years ago, “the past is never dead.  It’s not even past.”

For a few alleged victims, the sexual abuse had taken place “in an escalating fashion, escalating to the point of…deviate sexual intercourse, oral sex.”  Others were “less invasive and less lengthy,” and two involved only one alleged contact.

 

McGettigan asked the jurors to think of the witnesses not as young adults, but as helpless children.  “You’ll see them and understand them as the children they were.”  In order to prepare them for this leap of the imagination, he showed enlarged pictures of each alleged victim as a child, one at a time, on a 12-foot high screen. 

 

“That’s Brett,” he said, showing the photo from Sandusky’s book, Touched.  “Do you know whose hand that is on his shoulder?  The defendant’s.” 

 

In the picture of Michal Kajak, “the defendant is right behind Michal,” McGettigan said, of course implying sodomy, although it was blown up from an innocuous group photo. 

 

McGettigan said that Zachary Konstas was “so innocent he wasn’t even sure what part of a man’s body should look like and why he should be touching him,” even though Konstas never accused Sandusky of molesting him.

 

McGettigan explained, “Here’s a young boy who bore him no ill will because he wasn’t even aware of what happened.”

 

McGettigan never used the phrase “repressed memories,” but he repeatedly implied them.  He warned jurors that he would have to “press these young men for the details of their victimization” because “they don’t want to remember.”

 

 He instructed jurors to “imagine the age at which they were abused, the years that it was in the past, and the efforts which they had tried to bury [the memories],” which would “cause them to have difficulty in remembering with great specificity.”  But that lack of recall should not disturb them.  Indeed, “sometimes the honest admission of a lack of memory about…minor detail gives the clearest indication of the absolute truth of the painful events they will never forget.”

 

 In other words, the absence of detailed memory could be taken as proof that the recovered memories were true.

 

He explained that “the investigation was slow because doors were closed.  Just like the doors of people’s minds, they don’t want to talk about anything.  They were closed…. In many instances you will hear even when they spoke to the police the first time, they wouldn’t fully disclose.”  With sufficient encouragement, however, they did.

 

Finally, McGettigan said that humiliation, shame, and fear were the reasons that none of the alleged victims had told anyone about the alleged abuse for years.  He did not mention that some of them had not recalled the abuse until prompted by therapists, police, or lawyers.

 

According to reporter Sara Ganim, all jury members were “listening intently, wide-eyed.”  One juror shook her head in sympathetic disgust as the prosecutor described the abuse that each child had allegedly endured.

 

The rest of McGettigan’s opening statement summarized the various witnesses he planned to call, including Mike McQueary, who would, he said, describe “how he saw that defendant in a shower pressed up against the wall, with a small boy beneath him…his front to this little boy’s back moving back and forth.”[ii]

 

After McGettigan’s opening statement, Amendola told the judge that his team had some objections to place in the record.  “We didn’t want to interrupt Mr. McGettigan,” he explained.  “We had an agreement.”

 

 Amendola apparently wanted to be friendly, to be liked, so he agreed not to voice objections during opening or closing statements.  Karl Rominger demurred, but because Amendola was in charge and was personal friends with Sandusky, he remained silent. 

 

“On many occasions, I disagreed with Mr. Amendola,” he recalled.  “However, I did not voice my disagreement because I did not want to undermine Mr. Amendola, who had the relationship with Mr. Sandusky.”  Because Amendola had taken few major cases to trial, Rominger said “I felt I would be able to assist with trial objections and evidentiary issues more ably than Mr. Amendola.”[iii]

 

Thus, Rominger belatedly objected to McGettigans photo array of the alleged victims, which were “stylized and cut for maximum emotional impact.”  He asked for a mistrial or a limiting instruction to jurors not to consider the images as evidence.  Cleland curtly denied his motions. 

 

Rominger objected that “the prosecution wrongly kept referring to the complaining witnesses as victims.”  Cleland regarded the term as acceptable as a “matter of convenience” and would let the jury know that “we’re using the terms victims as a shorthand, [it] obviously means alleged.”

 

  Rominger objected to McGettigan’s use of the words humiliation, shame, and fear.  “What they’re doing is essentially explaining why the witnesses said nothing.”  This amounted to argument, not a presentation of facts.

 

Similarly, McGettigan should not have argued that there was a huge amount of evidence for guilt.  “There is no overwhelming evidence of anything at this point.”  Cleland denied these as well as all the rest of his objections.[iv]

 

Then it was defense attorney Joe Amendola’s turn.  Early in 2009, upon learning of the Aaron Fisher allegations, Sandusky had first hired Amendola, a local State College practitioner.

 

A former prosecutor, Amendola had switched to defense, taking on drinking-under-the-influence and rape cases.  He had a reputation for negotiating favorable plea bargains but had taken relatively few cases to trial.  He and McGettigan were the same age, but they were stark contrasts in many ways.

 

 McGettigan was abrasive and only recently engaged to be married for the first time.  Amendola had a friendly, smiling demeanor that had seen him through several failed marriages, the most recent the result of an affair in which he impregnated his 16-year-old intern in 1997 when he was 48.

 

Many observers, including Amendola himself, were surprised that Sandusky stuck with the home-town lawyer.  Before Sandusky’s arrest, Amendola said, “I’m sure some big-name attorney is going to volunteer to represent him.”[v]  But Sandusky, who was known for his sometimes naïve loyalty to friends and colleagues, stuck with Amendola, and besides, no big-name attorneys wanted to take on the toxic case.

 

After McGettigan’s masterful performance, Amendola’s opening statement was embarrassingly lame.  “This is a daunting task,” he began.  “I’ll be honest with you, I’m not sure how to approach it.  The Commonwealth has overwhelming evidence against Mr. Sandusky.”

 

 It’s difficult to imagine a worse defensive posture than talking about the “overwhelming evidence” against his client, particularly when his colleague, Karl Rominger, had just objected to McGettigan’s use of that phrase.

 

Rominger winced, since Amendola had just “cast Mr. Sandusky as guilty in the minds of the jurors,” he thought.

 

“I never had a case like this in my life,” Amendola continued, “and I can assure you I never will again.”  But, he said, he had to make an opening statement, even though it seemed hopeless.  “We can pack it in now and say, ‘Gee whiz, we don’t have a chance.’”

 

He compared his task as “similar to climbing Mount Everest from the bottom of the hill.”  He said that he was David to the government’s Goliath, and he complained about the “boxes and boxes of materials to go through.”

 

Finally, Amendola said that he needed to “figure out how we can present Mr. Sandusky’s case to you so that you will understand that he’s innocent.”  If he expected to convince the jury of his client’s innocence, he certainly had a strange way of approaching it.  He asserted, without much conviction, that “There are no victims in this case…because victims only come about after you twelve determine they’re victims.”

 

 He noted that Sandusky had “always said he’s innocent” and that it had only been seven months since the Grand Jury Presentment had been made public and Sandusky was arrested, whereas “the Commonwealth had over three years to investigate these allegations.”

 

“So how did it start?”  It began with Aaron Fisher’s allegations.  “Jerry Sandusky fondled him above his clothing one time.”  What Amendola undoubtedly meant to say was that Fisher alleged at first that Sandusky had touched him above his clothing, but instead he told the jury that he had indeed fondled him.  Then he talked about the 1998 shower incident and said that Zachary Konstas would say that “there was no sexual touching…. They fooled around in the shower and they played.”

 

Amendola admitted that Sandusky “got showers with kids,” and that “Many of us think that that in and of itself proves that he’s guilty of horrendous crimes.”  But “Jerry’s culture growing up in his generation where he grew up, he’s going to tell you later it was routine for individuals to get showers together.”  In other words, he expected to call Sandusky to the stand to testify.

 

He warned the jury that they would hear graphic descriptions of grotesque sexual abuse.  “The testimony you are going to get is going to be awful, but that doesn’t make it true.”  He wondered aloud, “How do we get to the end of this case, and how do we try to establish that Jerry Sandusky is not guilty, that there’s a real reasonable doubt here?”  He apparently had no idea.

 

He then talked about the McQueary shower incident.  “What we think is that he saw something and he made assumptions.”  Amendola did not point out that McQueary did not in fact see much of anything.  He heard slapping sounds. 

 

Then the defense attorney made it worse by alluding to “when he [McQueary] went into the shower and saw Jerry Sandusky with a young-looking person.”  In reality, McQueary never went into the shower, and he didn’t initially say that he saw Sandusky with a boy in the shower.  He told Dr. Dranov that night that he saw a boy, and that an arm reached out to pull him back into the shower.

 

Amendola then alluded to this boy in the shower, Victim 2, and said, “I suspect [he] is not going to be a witness according to the Commonwealth because he hasn’t actually been identified.”  Amendola didn’t say that he had been identified as Allan Myers because he didn’t intend to call him to the stand, either, since Andrew Shubin had taken him as a “victim” client.

 

Finally, Amendola made a salient point.  Dranov and McQueary’s father advised Mike McQueary to tell Joe Paterno about his concerns.  “It’s not the kind of advice I would have given if someone said, ‘I just saw Jerry Sandusky having anal sex with a ten-year-old boy in the shower.”

 

But most of Amendola’s opening statement could not possibly have convinced jurors that Sandusky was likely to be innocent.  “When you hear this testimony,” he said, “think about the logical sense [that] just doesn’t make any sense,” which, of course, made no sense.  “The accusers.  You saw those eight photos.  Cute kids.  Why would they lie?”

 

Amendola’s only explanation was financial motivation.  “Money is the root of all evil.”  Also, because they were Second Mile kids, “they had issues.”  He did not allude to the influence of therapists or leading police interviews, though he later noted that “the accusers were questioned multiple times…. The government went back until they got an answer they wanted to hear.”

 

“After all this abuse occurred,” Amendola said, “all these horrific things happened, they [the alleged victims] maintained relationships with Jerry and Dottie Sandusky.”  What he meant to say, of course, was that after all this alleged abuse and horrific things allegedly occurred, many boys remained friendly with the Sanduskys.  But that’s not how it came out.

 

“Jerry Sandusky didn’t pick the time or place to be arrested,” Amendola noted, as if this had any relevance to his innocence or guilt.  Then, once again, he damned his own client.  “Jerry, in my opinion, loves kids so much that he does things that none of us would ever dream of doing.”

 

Desperately trying to salvage his ineffective opening statement, Amendola asserted, without conviction, “At the conclusion of [all the] evidence, we suspect that you’ll find him not guilty.”  He ended by saying, “Thank you folks, for listening.  I know it’s been a long morning.  I know you’ll do a great job for both sides.”  For Amendola, it had indeed been a long morning.[vi]

 

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[i] Goldman, “Meet Sandusky’s Prosecutor”; Ganim, “Jerry Sandusky Trial: Prosecutor Is Used to the Spotlight.”

[ii] Trial Transcript, McGettigan opening statement, Day 1, June 11, 2012, p. 3-45; Ganim, “Sandusky Trial: Prosecutor’s Opening Statements.”

[iii] Karl Rominger Affidavit, in Second Amended Petition for Post Conviction Relief.

[iv] Trial Transcript, Day 1, p. 22-29.

[v] Ganim, “Joe Amendola Ponders His Life”; Ganim, “Jerry Sandusky Trial: Defense attorney is repected”; Dawson, “Jerry Sandusky’s lawyer Joe Amendola.”

[vi] Trial Transcript, Amendola Opening Statement, June 11, 2012, p. 3-29; Karl Rominger affidavit, in Second Amended Petition for Post Conviction Relief.

This excerpt is from Chapter 14, "Opening Statements in the Sandusky trial, from the book The Most Hated Man In America; Jerry Sandusky and the Rush to Judgment.

For further information: markpendergrast.com.