Motika leads Patriots past Pacers

November 17, 2011

“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.