Bob Costas for the Prosecution, Your Honor

Two of our fundamental rights under the Constitution are the right to trial by jury and the right to free speech.   When the two meet under the bright lights, however, the result isn’t always pretty. 

The most recent example is the remarkable interview of former Penn State coach Jerry Sandusky by Bob Costas of NBC Sports on the Rock Center program.  Sandusky, of course, has been indicted for allegedly sexually molesting multiple underage boys who participated in his youth programs.  Criminal defendants such as Sandusky have the right to remain silent; it is the state’s burden to prove guilt beyond a reasonable doubt.   Nonetheless, high-profile criminal defendants sometimes speak directly to the press in an effort to convince the public of their innocence while avoiding anything that might incriminate them in a trial.    

Sandusky accomplished neither.  Relying on cross-examination skills worthy of a skilled prosecutor, Costas was able to obtain a series of key admissions from Sandusky that put the former coach in specific places and questionable circumstances that a prosecutor otherwise would have to establish at trial through other witnesses.  Also, the manner in which Sandusky answered certain questions will certainly not help his defense.  For example, Sandusky immediately denied being a pedophile when questioned directly, but when Costas pressed him, the coach took an uncomfortably long time to repeat that denial:

COSTAS: Are you sexually attracted to young boys, to underage boys?
SANDUSKY: Am I sexually attracted to underage boys?
SANDUSKY: Sexually attracted, you know, I enjoy young people. I love to be around them. But no I'm not sexually attracted to young boys.

On the specifics of the indictment, Sandusky strangely didn’t completely deny his guilt while casually providing – for the rest of us, anyway – some disturbing details:   

SANDUSKY:  I say that I am innocent of those charges.
COSTAS:  Innocent? Completely innocent and falsely accused in every aspect?
SANDUSKY:   Well I could say that, you know, I have done some of those things. I have horsed around with kids. I have showered after workouts. I have hugged them and I have touched their leg. Without intent of sexual contact. But - so if you look at it that way - there are things that wouldn't - you know, would be accurate.

Criminal defendants are constitutionally entitled to the presumption of innocence in the courtroom, and they should not be ”tried by the media.”  But when the defendant himself speaks out publicly, anything he says can and will be used against him, and in both venues.  The Costas interview left the distinct impression that Sandusky claims he didn’t cross a line he drew for himself that comes uncomfortably close to the heinous conduct of which he is accused.  

So close, in fact, that it won’t take much more evidence for a jury to conclude that he did, indeed, cross it.

Posted: 11/15/2011 2:53:47 PM by Editor | with 0 comments

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Thanks for stopping by On the Merits, the first blog from the Texas Center for Legal Ethics. On the Merits will take a close look at significant legal stories with an eye toward addressing the legal myths and misconceptions that turn up in news stories, movies, TV programs, websites, anonymous emails and other forms of mass communications. Our goal at On the Merits is to provide readers with a thoughtful examination of what the media and others are saying about the legal profession and to apply the frequently-absent context of how the legal system actually works.

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