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Penn State Scandal: Explaining The Jerry Sandusky Appeals Process

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We've got a long way to go here. While former Penn State higher-ups Gary Schultz and Tim Curley face perjury charges, and the school itself has a whole lot of settling to do, we're not even done with the Jerry Sandusky legal proceedings yet.

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Jerry Sandusky's trial is over, but we haven't heard the last of him; his attorney has indicated that he will appeal the jury's verdict. If you've ever watched Law & Order, Franklin and Bash or Night Court (the last of which is the only accurate legal show) you have probably heard a defendant say that he will appeal a verdict. But you probably weren't explained what exactly an appeal entails. That's why I'm here with another Q&A to explain the appeals process.

First thing's first, Mr. Law Degree, what's an appeal?
An appeal is a request that a court change a formal decision. There are many types of appeals, but I will focus on appealing guilty criminal verdicts in this primer. Criminal trials are conducted in trial courts, but there are higher courts (usually called appellate courts) that may hear challenges to a guilty verdict. But they will only consider challenges to issues of law, not issues of fact. Also, please note that this does not apply to the NFL, where Roger Goodell makes all decisions in his litigation avoidance starchamber.

What's the difference between an issue of law and an issue of fact? And why can't appellate courts consider challenges to issues of fact?
An issue of fact is something like "Did Jerry Sandusky rape a 10-year-old boy?" An issue of law is something like, "Did the judge properly allow testimony concerning Jerry Sandusky raping a 10-year-old boy?" You can't appeal issues of fact because a lower court is designed to determine all issues of fact via the trial process. Appellate courts are designed to only determine whether the law was properly applied during the trial. The decisions that the jury of your peers made at a criminal trial are pretty much unimpeachable.

What if the jury were a bunch of morons?
That means your peers are a bunch of morons. There have been juries that were asleep at the trial and smoking pot and having sex in the bathroom during lunch breaks. That jury ended up winning the Fulmer Cup, but its decisions couldn't be appealed. Even if you have a civil trial and the judge is in charge of making factual determinations, you cannot be appeal those findings of fact because if you were entitled to a new trial on every appeal then nobody would ever have repose. That's why all you can say on appeal is that the law was applied incorrectly.

OK, so what can Jerry Sandusky say that the judge did incorrectly at the trial?
The first issue he can take with the trial is say that the judge incorrectly admitted hearsay evidence.

What's hearsay evidence?
Hearsay evidence is evidence offered by someone who was not present for the event they are testifying about. Courts generally don't allow it because we don't want people testifying "I heard from Jim that Jerry Sandusky raped a purple monkey dishwasher" after a game of telephone. Instead of hearsay, you need to offer evidence from the actual source; the person who started the game of telephone, if you will.

What hearsay evidence did the judge admit at the Sandusky trial? Why did he admit it if you're not allowed to offer it?
Jerry Sandusky's main defense appeared to be that all the victims were part of a conspiracy to make false assault allegations in an attempt to sue Sandusky and Penn State for a lot of money. The prosecution needed to rebut this defense by offering the testimony of third parties that had nothing to gain from alleging that they saw Sandusky raping young boys. Their two best third party witnesses were then-assistant coach Mike McQueary and janitor Jim Calhoun, both of whom saw incidents involving Sandusky and young boys in the Penn State showers. Calhoun has dementia and was thus unable to testify at trial. However, Calhoun told one of his colleagues, Ronald Petrosky, that he saw a young boy performing oral sex on Sandusky immediately after witnessing the incident. And the judge allowed Petrosky to testify.

Why would the judge allow hearsay evidence?
Well, there are exceptions to the hearsay rule, and Petrosky's testimony was covered by the "excited utterance" exception. The exception allows you to testify as to what a person said if they were in an excited state after seeing something, because we assume that when a person is an excited state that they have no reason to lie. And if you saw someone make an excited utterance, you can testify as to the truth of what that person saw, not just the fact that the person was excited after seeing something. That is important because Petrosky was allowed to testify that Calhoun saw a young boy performing oral sex on Sandusky, not that Calhoun was horrified by what he saw.

So it seems like Sandusky doesn't have much of a case on that one, what else could he argue?
Sandusky can also argue that the judge prejudiced the jury by playing an edited tape of his interview with Bob Costas. NBC sent the prosecution a copy of the Costas interview that made it seem like Sandusky hesitated when asked if he had molested young boys, when in fact he had not. The judge had actually considered ordering a mistrial if this were the result of prosecutorial misconduct, but it was a mistake by NBC so the judge offered the jury an unedited transcript instead.

Is that the biggest mistake that NBC has ever made?
Maybe you should ask Conan O'Brien that question.

So Sandusky can allege that the edited evidence prejudiced his case so the trial should be thrown out?
Yes, but it's difficult to allege that one piece of evidence out of the flood of testimony against Sandusky actually changed the outcome. In subsequent interviews, jurors have said that it was the testimony of Sandusky's victims that convinced them to convict the former Penn State coach. An appeals court would look at the transcript of the trial and probably decide the same.

So what else can he allege?
The last thing that Sandusky can allege is ineffective assistance of counsel. Lionel Hutz clone Joe Amendola certainly didn't acquit himself well during the trial, and after the verdict, he revealed he wanted to resign before trial because the state had not given him enough time to prepare.

Does that mean a Sandusky claim of ineffective assistance of counsel would succeed?
Probably not. Lawyers have fallen asleep and done cocaine during trials (the latter might help, actually), and their defendants have still lost ineffective assistance of counsel claims. That's because the defendants need to prove that 1) the counsel fell below an objective standard of reasonableness (read; was incompetent), and 2) the defendant would have been found not guilty if not for said incompetence. The second prong is pretty tough to prove and is generally limited to stuff like "the lawyer had photos of me volunteering at church when the murder happened, but left them at a BoDeans concert."

But I don't think Sandusky could even prove the first prong. Amendola wasn't great, but he had a dog of a case and he did about as well as he could have considering the circumstances. He might not know when to shut up to the media, and letting his client speak to NBC was ill-advised, but the case he put forward at trial was about the best defense he could muster.

Seems like Sandusky has a slim chance at winning these appeals. Why bother with them?
When Louis Freeh releases his report on Sandusky later this summer, it will open a torrent of civil litigation against Penn State and the Sandusky family. Sandusky is facing life in jail, and his wife would probably be bankrupted by all the litigation against him. 32 years as a Penn State coach probably means he built up a decent nest egg. Sandusky probably wants to spend as much of his retirement fund as possible on a costly appeals before his victims hit him with civil lawsuits.

Wow, that's a pretty shitty thing to do.
Well, it's not the worst thing Sandusky has done.

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