Jerry Sandusky already has been convicted by the media and the public of a series of atrocious sexual crimes against young boys committed over many years. He deserves no sympathy even if one-tenth of what is reported about him is true. He appears to be as bad a sexual predator as there is. We can already imagine how unpopular even the admittedly-provocative title of this piece might seem.
But why has he already been convicted? Is it because he has been formally charged? Probably not, since the Police Criminal Complaint (the Pennsylvania procedural counterpart of an indictment) by itself merely sketched out with very few details the allegations against him. Is it because he has publicly and on the record, so to speak, acknowledged being with children in a compromising setting? Probably not, even though his lawyer surprisingly allowed him to admit far too much in last week's TV interview, i.e., that he "horsed around" with a 10-year-old in a locker room shower.
Rather, Jerry Sandusky has been found guilty because the Attorney General of Pennsylvania has de facto violated his rights. To be sure, in such a horrible case, one is inclined to side with the prosecutor. It is hard to criticize a prosecutor who, after many years of what looks like a cover-up by Penn State officials, has finally been able through a painstaking investigation to acquire evidence and expose Sandusky's serial crimes. The truth, however, is that in issuing the ubiquitous Grand Jury Report (or "presentment"), which ostensibly was used merely to describe the grand jury's "findings" -- the Attorney General has inescapably proven in the public's mind Sandusky's guilt beyond a reasonable doubt. Can any trial jury selected to decide this case conceivably find Sandusky not guilty given what the public already has learned from the clearly incendiary Report which countless press websites incorrectly identify as the Sandusky Indictment?
What is this so-called "grand jury report"? It is basically an official document ostensibly drafted by a grand jury to describe its "findings" after it has investigated certain conduct. Most frequently, the conduct that results in grand jury reports around the nation doesn't result in criminal charges, but rather in a statement, sometimes called a "presentment," that describes private or official wrongdoing and proposes remedies and recommends reforms. When a grand jury report is issued, in Pennsylvania as well as in most jurisdictions, the law requires that the facts disclosed in the report not, in the language of the Pennsylvania statute "prejudice fair consideration of a pending criminal matter." Accordingly, when such a report is issued, it is typically sealed, and a judge reviews the document to determine whether a defendant will be prejudiced by what the report will reveal once it is made public with the court's approval.
How is it possible, then, that Sandusky will not be/has not already been prejudiced by a grand jury report that directly identifies him by name, again and again, and in explicit detail, as the sexual predator who sodomized young boy after young boy? It is not possible. The name "Sandusky" is already synonymous with "monster" without a witness ever having been sworn in open court.
Why should it matter? After all, Sandusky is clearly guilty, isn't he? Just listen to every TV commentator who has spoken of him; all the talking heads and writers who have commented on the scandal that has overwhelmed Sandusky as well as Joe Paterno, Happy Valley and the Penn State campus. Hearken to all those who have made Penn State the whipping boy to stoke America's understandable fury over a double standard for campus athletes. But that's precisely the point -- everyone already "knows" that Sandusky is guilty because the Attorney General -- not the grand jury -- announced publicly the allegations as "fact," not simply charges, and all done in the name of the grand jury.
For example, the most provocative episode in the grand jury report describes that on March 1, 2002, an assistant coach (unnamed, but, also thanks to the report, we now all know his name) entered the Penn State locker room and found, according to the report, "a naked boy, Victim 2, whose age he estimated to be 10 years old, with his hands up against the wall, being subject to anal intercourse by a naked Sandusky. The graduate student was shocked but noticed that both Victim 2 and Sandusky saw him. The graduate student left immediately, distraught." The report also reveals in considerable detail that the graduate student brought his vivid account up the chain to Coach Joe Paterno, and then further up the chain to Penn State's Athletic Director and Senior Vice President for Finance and Business, where the inquiry seems to have died without police knowledge or action.
The fact that the inquiry was buried on a college campus without a police report of any kind is by itself certainly worthy of a grand jury report: America does need to know whether athletes, coaches, and athletic departments in general -- at Penn State as well as on other college campuses -- receive favored treatment, and are guilty of covering up of wrongdoing. But the public doesn't have to learn that information at the expense of fundamental due process protections.
Indeed, when one Googles "Sandusky indictment," one is opened to numerous websites that contain not the criminal charge in the form of the Police Criminal Complaint, but the now-heralded 23-page grand jury report that is in the public record and indeed contained on the Pennsylvania Attorney General's official website -- the only relevant Sandusky document one can find on that website. That report narrates the sometimes detailed stories surrounding the eight boys that Sandusky allegedly victimized -- the same victims about which Sandusky is charged in the Complaint. The Complaint, however, contains only brief assertions, meaning allegations or accusations, for each of the charges -- as it should be. For example, in the instance of the now famous, albeit correctly anonymous Victim 2, " ... the defendant did engage in deviate sexual intercourse with a complainant who was less than 16 years of age and the person was four or more years older than the complainant and the complainant and the person were not married. To wit: The Defendant Gerald A. Sandusky did engage in involuntary deviate sexual intercourse with juvenile Victim #2." Except, and this is a critical exception, in this case the Police Criminal Complaint cross references to the Grand Jury Report's very effusive discussion of precisely how Victim 2 was abused. One wouldn't/one shouldn't find in as typical charging instrument the considerable and inflammatory detail found in the Report.
That's right. For as horrible as the crimes may be, each of the actual charges relating to Victims 1 through 8 contain very little more than the quoted sentence in the preceding paragraph. And that's the way it should be, and always has been for nine hundred years, or at least since 1215 when King John's captors at Runnymede demanded a grand jury as the "protector" of the criminal defendant, as part of rights accorded by the Magna Carta.
Defendants, even horrible ones such as Jerry Sandusky, deserve fair treatment from prosecutors. Just as it would violate professional ethics for a prosecutor to publicly state at the time of an arrest all of the incriminating evidence against a defendant beyond what is contained in the four corners of the criminal charge itself, it appears to violate professional ethics for a prosecutor to sneak through the back door to do the same thing: that is, to smear a defendant by disclosing secret grand jury evidence through a one-sided grand jury report which the prosecution alone creates and controls.
The authors of this piece spent hundreds of hours before grand juries when they were prosecutors. If anyone believes that a grand jury by itself writes an indictment, or a report, and not the prosecutor who has a strategic stake in what these documents contain, they should sit for a few hours in the anteroom to any grand jury. They will quickly learn that it is the prosecutor -- even the most honorable and ethical -- who picks and chooses what the grand jury is allowed to hear.
The late Sam Ervin, legendary chairman of the Senate Watergate Committee, once recounted a story of a potential trial juror asking a local judge who was selecting a trial jury in South Carolina to release him from jury service because he was hard of hearing in one ear. The judge responded: "Okay, but wait around for this afternoon. I'm selecting a grand jury then. You'll be perfect for it. They only hear one side of the story anyway."
We're not saying that the Sandusky grand jury heard only one side of the story. No, only that the public has been force fed too much of what Sandusky's grand jury did hear, as if it were metaphorically published on Mount Sinai. The grand jury report specifically says, "We, the members of the Thirty-Third Statewide Investigating Grand Jury... do hereby make the following findings of fact..."
Grand juries typically file charges -- they "allege" that a defendant committed certain criminal conduct. The Sandusky grand jury -- or wasn't it the prosecutor? -- found "facts" as the document itself announces. Is it any wonder that Sandusky -- however horrible he and his crimes may be -- couldn't possibly get a fair trial anywhere in America? America speaks best about its justice when it accords justice to those least deserving of it (and, indeed, Sandusky may be among them).
By the way, has anybody even noticed or paid attention to the literally parenthetical and rote words at the tail end of the Attorney General's website press release that states: "A person charged with a crime is presumed innocent until proven guilty"?
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