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Experts: Media onslaught could affect selection of jurors in Sandusky trial

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Monday, Nov. 21, 2011

HARRISBURG — Jerry Sandusky has something in common with Michael Jackson, Scott Peterson, Casey Anthony and O.J. Simpson.

The former Penn State assistant football coach's criminal case is subject to wall-to-wall media coverage and that news coverage can swing public opinion and cause people to make a rush to judgment, some legal experts say.

"It's like nothing I've ever seen. It's a maelstrom," said Muhlenberg College political science professor Christopher Borick, a 1987 Penn State graduate.

"In my lifetime, there never has been a higher profile case than this," said Lemoyne defense attorney William C. Costopoulos, who suspects Sandusky has become "the most despised man in America today."

Accused of molesting young boys from 1994 to 2009, Sandusky in an NBC interview said he is innocent but admitted to showering with and engaging in "horseplay" with boys. The mother of at least one victim and the biological mother of one of Sandusky's adopted sons expressed disgust in subsequent TV appearances.

Some people "want to hang him from the highest tree," said state Rep. Rob Matzie, D-Beaver County. State lawmakers are weighing changes to the law that requires people in certain occupations who suspect child abuse to report it.

John Burkoff, a professor at the University of Pittsburgh School of Law, said the "incandescent glare of white-hot publicity sometimes obscures the presumption of innocence."

The public scrutiny and Sandusky's TV interview present challenges to getting a fair trial, but if Sandusky goes to trial, a judge could seat a jury in Pennsylvania, experts say.

"The public and the press reflexively treated the grand jury presentment in this case as true," Burkoff said. "That's human nature. But you know what• Maybe the allegations aren't true. Or maybe they are partly true and partly untrue. We just don't know yet."

Bruce Antkowiak, professor of law and criminology at St. Vincent College in Latrobe, said the presiding judge likely would have lawyers pick jurors from outside Centre County and would allow time to pass, in order to lessen people's passion. The case would not need jurors who never heard about it, Antkowiak said, simply people who say they haven't formed judgments about it.

"Jurors have to be given a lot more credit than we give them," said Antkowiak, a former federal prosecutor. "When they take that oath, they take the task seriously."

Crafting a defense for Sandusky will be difficult but not impossible. It likely would amount to discrediting state witnesses on cross-examination while admitting only to "horseplay," experts say.

"This is the kind of situation where there is no middle ground," Antkowiak said.

The intense interest stems from the "horrific nature of the alleged crimes" at a revered institution, said Borick. The accusations are "emotional and controversial, and make for great drama on TV," he said.

Yet, Burkoff said, "The 24-hour news cycle works both ways. If, for example, (former assistant coach Mike) McQueary really claims that he reported the alleged shower rape to the police, and records show that he didn't, well, all of a sudden his testimony doesn't look as solid as it did ... and doubts arise.


"And something new will pop up tomorrow, and the next day and the day after that, and public opinion will probably swing yet another way."

McQueary said he witnessed Sandusky raping a 10-year-old boy in 2002, according to a grand jury report.

"It's not an open-and-shut case for the prosecution," Burkoff said. "Some of the charges will probably have to be resolved on a 'he said, he said' basis. A victim will say one thing, and Sandusky will tell an entirely different story."

Authorities asked potential victims to come forward. But having eight victims already in the grand jury presentment poses a problem for Sandusky, Costopoulos said.

Burkoff agrees that the "large number of accusations of a similar type of abusive conduct" is problematic for the defense.

"If the prosecution can convince a jury beyond a reasonable doubt that just one of these abuse allegations is true, in my opinion, I think that conclusion will lead them to believe that all of the allegations are true," he said.

Wesley Oliver, a professor at Widener University Law School, said cases with so many victims can sometimes prove to be difficult for the prosecution.

"There have been cases of mass hysteria where multiple child victims have falsely claimed sex abuse," Oliver said. "A case in Kern County, Calif., in the 1980s was the first of many cases demonstrating how even multiple child complainants may not be accurate."

Still, he said, "it will be very difficult for Sandusky to mount a defense making a claim that this was yet another example of mass hysteria because there was at least one very credible witness (McQueary) who was unconnected to any of these kids."




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