On the advice of my attorney…

“Why in the world would he have agreed to do this?”

— Jef­frey Toobin,

CNN Legal Analyst

“Mr. San­dusky goes on world­wide tele­vi­sion and admits he did every­thing the pros­e­cu­tion claims he did, except for the ulti­mate act of rape or sodomy? If I were a pros­e­cu­tor, I’d be stunned.”

— Lynne Abraham,

For­mer Philadel­phia D.A.

Some­time dur­ing my first year of law school I received, as a gift, a sweat­shirt that says across the front of it, “On the advice of my attor­ney, my shirt has no com­ment at this time.” It’s a com­mon sen­ti­ment. Just about any time that a per­son is accused of a crime or involved in a sit­u­a­tion in which they might be the tar­get of a law­suit, they tell the media that they would really, really like to answer ques­tions, but their legal coun­sel has advised them not to. It hap­pens so fre­quently that it has acquired a slang name– ‘lawyer­ing up.’

There are good rea­sons for it too. To begin with, a media inter­view is a com­pletely uncon­trolled envi­ron­ment. Answers tend to come at the inter­vie­wee quickly and some­times from mul­ti­ple sources. There is lit­tle time to pon­der a cor­rect answer and, as Her­man Cain unfor­tu­nately dis­cov­ered ear­lier this week, some­times paus­ing to think can be per­ceived as being as bad or even worse than say­ing the wrong thing.

More­over, media inter­views are almost always recorded and pre­served for pos­ter­ity (or at least for replay­ing in the court­room). Years ago one could claim that a news­pa­per reporter had mis­quoted them but in an age where any­one can video­tape an inter­view with a hand­held device and then broad­cast that inter­view around the world in sec­onds, there is almost always video of everything.

It is remark­ably, remark­ably sur­pris­ing, there­fore, that for­mer Penn State coach Jerry San­dusky, who cur­rently stands charged with forty mis­de­meanor and felony sex offenses for allegedly abus­ing young boys over a period of more than a decade, chose not only to do an inter­view, but to do a live inter­view with inter­na­tion­ally known sports com­men­ta­tor Bob Costas. Sandusky’s inter­view stands as a text­book exam­ple of why attor­neys don’t let their clients do what he did.

The inter­view could poten­tially be dis­as­trous for San­dusky in his crim­i­nal case. Costas asked him if he was, “falsely accused in every aspect.” Rather than say yes, San­dusky replied, “Well, I could say that, you know, I have done some of those things.” After deny­ing that he ever engaged in inap­pro­pri­ate sex­ual activ­ity, San­dusky then admits to show­er­ing naked with young boys on mul­ti­ple occa­sions and to “horse play.” Costas then asks San­dusky if he feels that he is at fault for the fir­ing of coach Joe Paterno and San­dusky responds, “Well in ret­ro­spect I, you know, I shouldn’t have show­ered with those kids.”

What fol­lows then is the most bizarre and poten­tially dam­ag­ing exchange. Costas asks San­dusky if he is sex­u­ally attracted to under­age boys, a ques­tion that any rea­son­able per­son would imme­di­ately respond to with an emphatic denial. Instead, San­dusky repeats the ques­tion. There is then a three sec­ond pause (that feels much, much longer under the cir­cum­stances) before San­dusky gives the awful response, “Sex­u­ally attracted, you know, I enjoy young peo­ple, I love to be around them.” Only then does he finally deny the sex­ual attraction.

In order for the Com­mon­wealth of Penn­syl­va­nia to con­vict Jerry San­dusky they will need to prove that he was present when the alleged activ­ity occurred, that the vic­tims were present as well, that they were alone, that they were in a posi­tion where sex­ual activ­ity could have occurred and then, finally, that the sex­ual activ­ity did in fact occur. Jerry San­dusky has just handed them a taped inter­view in which he gives them, on a sil­ver plat­ter, every­thing but the ulti­mate act itself.

San­dusky is inno­cent until proven guilty, but there is no doubt that he felt com­pelled to speak because he was being con­victed in the court of pub­lic opin­ion. But recent his­tory is replete with cases where peo­ple were skew­ered by vicious, oppor­tunis­tic and sen­sa­tion­al­is­tic media per­son­al­i­ties like CNN’s Nancy Grace, only to be found not guilty when evi­dence was pre­sented to a jury in a court of law.

The next time you see some­one accused of a crime or involved in a law­suit say that they have been advised by their lawyer not to speak to the media, think of Jerry San­dusky and Bob Costas and you’ll know why their lawyer gave them that advice.

David Hej­manowski is a Mag­is­trate and Court Admin­is­tra­tor of the Delaware County Juve­nile Court and a for­mer Assis­tant Pros­e­cut­ing Attorney.

Posted by Dave Hejmanowski on Nov 17 2011. You can follow any responses to this entry through the RSS Feed. Comments can be made below.