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Talking to the Media: The Case of Coach Sandusky

Our founding fathers created the 5th Amendment right against self incrimination as one of the cornerstones of our democracy and criminal justice system.  It ensures that no individual accused of a crime, or so targeted, has any obligation to speak with anyone at any time, even at trial.  Most importantly, the privilege protects the innocent as much as the guilty.  Every day we witness convictions overturned because scientific evidence, in particular DNA evidence, provides definitive proof of innocence.  Innocent people have been freed from lengthy prison sentences where the main, if not the only, evidence was a confession that turned out to be false. Counter-intuitively, the more serious the crime, the more likely is the chance of a false confession.  This is precisely what the 5th Amendment was designed to protect against.  Keeping your mouth shut when you’re accused of a crime is a smart thing to do to protect yourself.

But then there is the case of Jerry Sandusky.  In all of the reports of his arrest and pending prosecution, we have not heard of any statement that the Penn State football coach made to law enforcement.  He apparently did not waive his 5th Amendment right. However, the public has heard more than we could possibly have imagined from Sandusky since his arrest … through his media interviews.

In an attempt to provide an innocent explanation for some of the allegations against him, Sandusky called in to NBC television journalist Bob Costas.  When asked if he was sexually attracted to underage boys, Sandusky slowly repeated the question as if it required some careful consideration.  Of course, only an emphatic and unequivocal “No!” would have helped him in the court of public opinion. He then went on to say, “No, I enjoy young people. I love to be around them…” before denying sexual attraction, and, in a particularly cringe worthy moment, admitted that “I shouldn’t have showered with those kids.”  A subsequent interview Sandusky did seemed to only sink him deeper.

Total backfire.  Although he is presumed innocent by law, everything that Sandusky has said publicly convinces most listeners or viewers that he is guilty. Where was his lawyer through all this?  Sadly, right there with him. Any good criminal defense attorney will discourage, if not virtually prevent, a client from speaking about a case because anything said can be used against him or her and taken out of context.  A client cannot be protected when being questioned without Court oversight, where counsel’s objections can prevent improper or misleading questions.  How his lawyer decided that talking to the press would be a good idea is mind-boggling. Further, in the one-in-a-million case where an attorney and client decide that speaking to the media is advisable, the attorney must completely “prep” or prepare the client for every imaginable question. Sandusky seemed unprepared for the most obviously foreseeable questions.

The Sandusky interviews stand as a cautionary warning to those accused of crimes that attempting to publicly “tell your side” of the story is fraught with landmines (it also suggests how critical it is to choose a wise lawyer).  And it’s also a cautionary warning to criminal defense lawyers about how important it is to prep a client for media interviews, in the very rare case that you either think it’s wise to talk to the press or you simply can’t talk him or her out of it.

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