06/25/2012 04:42 pm ET Updated Aug 24, 2012

Jerry Sandusky Is No Judge of Talent on Defense

As a football coach, defense was Jerry Sandusky's forte. Joe Paterno and Penn State believed Sandusky had insight about the ability and character required to play defense. But, apparently Sandusky's judgment in that realm was as flawed as his judgment about showering with children.

When the New York Times reports a story under the headline: "Defense Lawyer Expects a Conviction" something has gone radically wrong. The Pittsburgh Post Dispatch carried the most publicized and colorful quote from Sandusky's attorney:

While the jury was deliberating, Sandusky's defense attorney, Joe Amendola, told reporters in the courtroom that he "would die of a heart attack if his client was acquitted."

At the outset of the case Amendola attracted as many scurrilous headlines in Pennsylvania newspapers as his client.

[Early in the case, news] stories... that mentioned him focused on the attorney's baffling decision before the trial to let Sandusky do two media interviews that ended up being widely criticized as damaging.


There are plenty of news reports from the fall that dredged up the fact that Amendola, at about age 49, impregnated a 16-year-old client named Mary Lavasile in the mid-1990s. They married in 2003, had a second child and split up.

Amendola permitting his client to be savaged in pre-trial press interviews (an especially stark decision when compared to the decision that he go nowhere near a witness stand at his trial) might charitably be argued as just bad decision-making under adverse circumstances.

But as the trial wound down to its inevitable conclusion, Amendola topped all his prior gaffes and professional missteps with his comments about the inevitability of a guilty verdict. As one observer told the Huffington Post reporter in reaction to Amedola's statements: "When your own attorney says you're guilty, then you know you're in trouble,"

A day following the verdict Amendola could still not shut up. While discussing a plan to appeal the verdict, he offered yet another chestnut to reporters from CNN: "It was the expected outcome because of the overwhelming evidence against Jerry Sandusky." That may prove to be an especially unhelpful assessment if an appeal is based on grounds of insufficient evidence.

So much of Amendola's conduct in handling the case points to a defense attorney enamored with seeing his own name in the newspapers, ready to be exploited by reporters for pithy headline grabbing quotes, and exhibiting a devil-could-care-less attitude about professional rules for criminal defense attorneys.

There can be a wide range of opinions among lawyers about legal tactics and a wide range of opinion about what to say in a courtroom. But publicly sharing your beliefs with reporters that your client should be found guilty goes beyond dismaying incompetence: it is traitorous back stabbing of the human being a lawyer is morally and professional obligated to try to help.

As a public defender for 35 years, I frequently encountered members of the general public who expressed puzzlement about how a criminal defense attorney might hold a personal opinion about the guilt of a client and nonetheless professionally assert the client's innocence. The reason, I sometimes tried to explain, is that the Constitution guarantees an accused the services of someone with legal skill to argue and work to refute the state's case for guilt.

The adversarial process works not just for the benefit of the accused: it benefits society when cases are subject to adversarial testing. The outcome of such testing by equally resourced advocates is considered reliable enough to deserve respect and, in turn, to set the stage for severe punishments that can range up to the forfeiture of the life of the accused. While not subject to the death penalty, Sandusky, as a child molester in prison for the rest of his life, is a goner.

The lawyer who voluntarily takes on the duty of defending an accused is never compelled to share a personal opinion. Quite the contrary. The attorney-client privilege protects the client from the attorney being forced to share such personal opinions. Professional codes of conduct dictate discreet silence for lawyers regarding their own client's case when casual and frivolous talk will be harmful. However, beyond legal privileges and professional codes of ethics, surely lawyers like Amendola should remember maternal admonitions: "Honey, if you can't say something nice, just don't say anything."

There are so many people in a community with something to say about a client's guilt. There are victims, the police and of course paid prosecutors. Soon enough opinions will be formed by jurors, news reporters and courtroom observers. In a case like Sanduky's, there was no dearth of strong opinions about his guilt, held and expressed loudly, by almost everyone associated with the case and by the American public.

What Amendola doesn't seem to comprehend is that the lawyer for an accused is the one person paid - with a professional duty -- to not join in the cacophony of condemnation. A lawyer can talk trash and gossip negatively with reporters about everyone in the universe, save and except those unfortunate few who have placed their trust -- and sometimes their lives --in the hands of a lawyer.

When the personal assessments Amendola freely handed out to reporters are delivered while the jury is deliberating, it not only violates the lawyers professional obligations to the client, it contributes to a perception under which all the other members of the legal profession will operate in the future: lawyers concoct lies and defenses that even they don't believe in.

Amendola may be an outlier. The criminal justice system -- in the month of June alone -- served up other examples of stellar criminal defense lawyering to compare with that of Amendola.

Abbe Lowell, a nationally acclaimed defense lawyer, walked his client, John Edwards, out of a North Carolina federal court after the DOJ spent millions to tarnish his client as a marriage cheater who lied to his dying wife, his children and to the American public which came perilously close to putting him a heartbeat away from the White House.

And only last week, a Houston based criminal defense attorney, Rusty Hardin, obtained an acquittal for Roger Clemens, against whom there was abundant evidence of performance-enhancing drug use despite his bald face denials under oath to a congressional committee. Gaining an acquittal for an arrogant, super rich white athlete from Texas, like Clemens, was a tour de force when you consider that Clemen's fate was in the hands of a predominantly African-American jury in the District of Columbia.

So, why are there such disparate professional performances in such prominent cases? One possible explanation might be that Occam's razor explanation for all disparate social and legal outcomes: money. Edwards and Clemens spent millions for their legal representation. Sandusky did not have the assets to seek out a high-powered, professionally competent attorney.

Middle class defendants without wealth and accused of highly publicized crimes frequently hire attorneys in small, private practices that take the case for a low fee and in spite of a paucity of funds for experts and investigation. These attorneys are attracted by the publicity and its future impact on their law practices.

Ironically, poor and working class accused defendants can be represented at state expense by a public defender who typically has vastly more criminal defense experience, some public funding for investigation and clerks, and no particular financial incentive for profile enhancing publicity.

But, regardless of what systemic conditions result in marginally, or less than, competent lawyers defending clients in high publicity cases, it is nonetheless the duty of such lawyers who are retained in those cases to put the interest of the client first -- in front of their personal self-interest in currying favor with the press or seeing their name in print.

Jerry Sandusky's attorney violated a cardinal rule for professional service: "First Do No Harm."