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October 9, 2012

Guest Post on Jerry Sandusky's expected exercise of his allocution right

Mark Allenbaugh sent me comments about Jerry Sandusky's upcoming sentencing, and I urged him to turn his thoughts into a guest post.  Here it is:

Today, Jerry Sandusky most likely will be sentenced to a term that will guarantee he serves the rest of his life in prison.  Given a life expectancy of around 10 to 15 years, it inevitably will be significantly shortened by years of solitary confinement.  The real question is not what he’ll get, but what, if anything, he says.

Reports indicate he will use his right of allocution to claim his innocence.  In fact, late last night he released an audio file to the press wherein he claimed that “In my heart, I know I did not do these alleged disgusting acts. My wife has been my only sex partner.  That was after marriage.”

Unlike cases built primarily or exclusively on forensic evidence where botched investigations all too often lead to erroneous convictions, Sandusky’s claim of innocence will serve no purpose other than to largely defeat any mitigating evidence that may be introduced, and his statement released yesterday will only serve as impeachment evidence.  Why, for example, did he state that “Maybe (the case) will help others; some vulnerable children who could be abused, might not be because of all the publicity”? Sacrificial lamb or a back-handed admission of guilt?  Neither is helpful to him and persisting in his innocence will likely raise the ire of the Court.

Which raises the point as to when should an offender exercise his right of allocution. Judges have indicated, especially in sex offense cases, that they desire to hear offenders not just admit guilt and take “full responsibility,” but show remorse.  But where, as here, victims also are expected to testify, a client’s moment of catharsis can result in additional years of confinement.  And Sandusky’s sentencing effectively is his court of last resort inasmuch as any appeal, even if successful, may not come earlier enough to win him his freedom.

So, why then did Sandusky essentially allocute in public when his every word in court will be duly recorded?  Perhaps he is thinking over the wisdom of claiming innocence in open court in front of his victims and the judge, or he’s testing the waters of public reaction. More likely this could be the result of years of rationalization that has formed a permanent cognitive dissonance.  It is not uncommon, after all, for sex offenders to suffer from sometimes profound mental illness, which often can speak to mitigation or alternatives to exclusive incarceration.

But whatever the reason why, as the old saying goes, if you want to get out of a hole, stop digging.  Sandusky would be wise let his audio tape continue to do his talking, and waive his right of allocution.

Some prior posts on Sandusky case:

October 9, 2012 at 08:27 AM | Permalink

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Comments

This article has a couple of questionable assumptions.

1) The Court has some morality function above its legal tasks, like a church. And remorse will influence its sentencing decision, however much of a lie it might be. Sentencing is part of a morality play, rather than the business of public safety. The trial is in part for the benefit of the defendant, rather than that of the owners of the law, the public.

2) There is a chain of causation leading to a single factor in this catastrophe, the defendant. Not true. There is a cluster of factors coming together. The cluster includes the many failures of the law, of the enforcement of the law on the books, and of the incentives of the law to the public. If typical, Sandusky may have had hundreds of victims, including a foster kid who reported him. These failures should result in full tort liability, to deter.

3) An innocent defendant will always want to loudly testify and undergo rigorous cross examination. I believe Sandusky did not. That is a clear signal of guilt except to the wackos making up the Rules of Evidence. The Rules are mired in the 13th Century and result in a very high error rate, being totally obsolete, and violating many tenets of critical thinking. The Rules of Evidence are Medieval garbage, because the lawyer dumbass is a member of a Medieval criminal cult from 1L onward. This Sandusky statement is suspiciously too little too late.

Posted by: Supremacy Claus | Oct 9, 2012 8:56:51 AM

Maybe he should just tell the truth, without calculating about it.

Posted by: Bill Otis | Oct 9, 2012 10:27:26 AM


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