Breaking down the Sandusky verdict and a look at what's next

Publish date:

The verdict is in: a jury convicted former Penn State defensive coordinator on 45 of 48 counts related to his sexual abuse of children. legal analyst Michael McCann reacts to the verdict and explains what's next.

1. Who won: the government or Sandusky?

The government won this trial convincingly. To be sure, prosecutors would have preferred a clean sweep on all 48 counts. But to gain convictions on 45 of 48 counts (94 percent) should be considered a resounding success, especially considering (1) the difficult burden of "beyond a reasonable doubt"; (2) years having passed since the crimes were committed; and (3) with most jurors having ties to Penn State. Prosecutors were in control of the trial from Day 1, with effective examination of the eight victims and no time wasted on peripheral issues. In contrast, the defense seemed overwhelmed by the grotesque and believable facts, and resorted to unconvincing devices, such as use of the esoteric "histrionic personality disorder" and the counterintuitive "it's common for adult men to shower with boys" defense.

The fact that jury that took its time to carefully deliberate, re-heard testimony and refrained from the temptation to instantly convict Sandusky of all 48 counts only strengthens the legitimacy of the verdict. By its actions following the close of trial, the jury seemed to take its duties seriously and capably.

2. What impact did Matt Sandusky's revelation play in the jury's decision?

If jurors knew about it while deliberating, Thursday's bombshell by Matt Sandusky could nullify Jerry Sandusky's conviction.

Matt Sandusky, the 33-year-old adopted son and former foster child of Jerry and Dottie Sandusky, issued a statement on Thursday that Sandusky molested him. Now that jurors have completed their service, some may issue public statements or speak with journalists. If any juror acknowledges hearing about Matt Sandusky's accusation while serving, Jerry Sandusky would likely ask Judge John Cleland to throw out his conviction and order a new trial. He would argue that jurors were tainted by a prejudicial out-of-court statement. The potential prejudice is clear: jurors learning that Sandusky's own son accused him of molestation makes the eight accusers' allegations more believable.

The fact that jurors were sequestered in a hotel, where they were denied access to television, phone and Internet, makes it plausible, if not likely, that they were unaware of Matt Sandusky's accusation. Still, all it would take is one juror to suggest that he or she knew about the accusation and discussed it with other jurors to jeopardize the conviction.

3. How long will Sandusky be sentenced?

The 68-year-old Sandusky faces a maximum of 442 years in prison. Cleland will refer to Pennsylvania sentencing guidelines in determining Sandusky's term for each of the 45 counts, though the guidelines are not mandatory and Cleland can sentence Sandusky up to the limits prescribed by Pennsylvania law. Guidelines normally encourage judges to consider such factors as whether the defendant is a "first time" offender or repeat offender (Sandusky has no prior record and therefore is a first time offender); whether the crime hurt someone (Sandusky clearly hurt people); and whether the defendant was particularly cruel to a victim (Sandusky clearly was cruel). While Cleland enjoys considerable latitude in determining Sandusky's combined sentence, expect him to sentence Sandusky to a sentence that will far exceed Sandusky's lifetime.

Cleland also has the option of running the sentences for each count concurrently or consecutively. In most cases, the difference between the two is meaningful, as concurrent sentences are run at the same time, while consecutive are run one after the other. Usually first-time offenders, which includes Sandusky since he does not have a prior criminal record, receive concurrent sentences. The heinous nature of Sandusky's crimes, however, might lead Cleland to impose consecutive sentences. The difference is more symbolic in this case. Whether he's sentenced to concurrent or consecutive sentences, Sandusky, at 68, won't ever be leaving prison.

4. Will Sandusky receive special protection while incarcerated?

Given his fame and given that child rapists are often targeted by other inmates, Sandusky will be considered an "at-risk" inmate. While conditions of his incarceration will ultimately be determined by the prison warden, Sandusky will probably receive special protection and may even be isolated from other inmates.

Suicide is another concern with a prisoner like Sandusky, especially while he is jailed awaiting his prison sentence. Precautions will be taken to monitor him closely.

5. If Sandusky appeals, how likely is it that his conviction would be overturned?

Unlikely. For starters, there is no guarantee that an appellate court would even hear Sandusky's appeal, let alone reverse his conviction. To obtain an appeal, Sandusky would have to identify an error made by Judge Cleland in judging the trial and that materially influenced the trial's outcome. Sandusky could also argue that ineffective assistance of counsel from Joe Amendola and Karl Rominger caused his conviction.

During the trial, Cleland made one noticeably questionable decision. As explained in a previous column, Cleland permitted one Penn State janitor, Ronald Petroksy, to testify as to a purported statement made another janitor, Jim Calhoun, who now suffers from dementia and cannot testify. The statement, which concerned Sandusky raping a child (Victim 8, who has never been identified), was hearsay, since it was made out of court and its speaker cannot be cross-examined. Cleland, however, admitted the statement, reasoning that under an exception to hearsay for "excited utterances", he should allow it. Cleland's decision to admit the statement provides plausible grounds for appeal, as Sandusky can argue the statement was more prejudicial than probative. Sandusky was acquitted on an indecent assault charge related to Victim 8, though convicted on charges related to him.

Cleland made other decisions which Sandusky's lawyers might argue are grounds for appeal, but none are glaring and all would have required a timely objection by defense counsel. For instance, Cleland allowed the jury to hear to Sandusky's interview with Bob Costas on NBC's Rock Center last November. While Sandusky did not enjoy protection from the Fifth Amendment while speaking with Costas, it could be argued the interview was more prejudicial to Sandusky's rights than probative to the case against him. After all, Sandusky did not admit raping children in the interview and instead tried to portray himself as awkwardly loving of children. The interview, however, reflected terribly on Sandusky, who came across as creepy and defensive. It does not appear his lawyers formally objected to its admission during the trial, meaning it likely cannot be used as grounds for appeal.

Sandusky could also argue his legal representation was so inept that it rose to ineffective assistance of counsel. As explained, such an argument is unlikely, namely because Sandusky, overwhelmingly convicted on 45 of 48 counts, would have to show the outcome would have been different with better lawyers.

Even if an appeal is granted, keep in mind it would take months, if not years before it is heard. Also, an appeal would not constitute a retrial on any of the facts, nor would any witnesses testify. It would also be heard before an appellate court, without a jury, and only legal arguments would be considered.

6. How does Sandusky's conviction impact the trials of Tim Curley and Gary Shultz?

Sandusky's conviction is influential and may be referenced in the trials of Penn State athletic director Tim Curley and former vice president Gary Schultz, but both men face charges for separate conduct -- their own conduct, and not that of Sandusky. Specifically, they are charged with perjury and failing to report charges related to Victim 2, whom has never been identified and whom former graduate assistant Mike McQueary says was abused in a Penn State shower. Sandusky's attorneys called John Dranov, a friend of McQueary to testify, and Dranov rebutted some of McQueary's testimony. Sandusky was acquitted on the alleged rape of Victim 2, though convicted on other counts related to him. Expect Curley and Schultz to use the Sandusky trial to argue that the circumstances of Victim 2 remain conflicted and murky.

7. Will Penn State be sued civilly by Sandusky's victims?

It is likely that Sandusky's victims will provide notice to Penn State they intend to sue the school for failing to protect them. The Sandusky trial painted Penn State in a negative light, with multiple instances of where school officials could have acted but didn't. Penn State, however, has a number of legal defenses, including those based on statute of limitations, lack of legal duty and lack of causation. Whether Penn State and its insurance companies, which may end up paying a sizable amount of a litigation settlement or civil judgment, want to "fight" the victims in court is a separate matter. The university may opt to seek closure as soon as possible and provide favorable settlement terms to the victims in exchange for them dropping any potential claims.