Jerry Sandusky waived all charges to the next court level, the Pennsylvania trial court known as the Court of Common Pleas. This means that he gave up his right to contest the charges and the right to cross examine and thus test the accuracy of his accusers. This is frequently thought to be a sign that a plea deal is in the works, as is the presence of ten different accusers against one person. In this case however, just as most commentators were leaping at that conclusion, Sandusky stated that he intends to fight the charges “for four quarters.”
At first blush it is hard to reconcile the action with the words, as waiving the hearing essentially kept Sandusky off the field for at least a quarter or two. You aren’t fighting when you waive your right to have a hearing and no charges are thrown out in exchange. That said, there are a number of reasons why someone who wishes to fight at trial might choose to waive a Preliminary Hearing. In this case, there were enough victims set to testify against him that the low standard of a Preliminary Hearing, that a crime was probably committed, would likely be met no matter how vigorous the cross-examination. Further, the details that would be elicited, and the failure of a vigorous defense, might further damage Sandusky in the Court of public opinion – where he has already been soundly defeated. Consider as well that at a Pennsylvania Preliminary Hearing the Judge must take everything that the complaining witness says as true, and there was very little chance of winning on the merits in this case.
Since Mr. Sandusky was not likely to prevail at the Preliminary Hearing, and since a loss would make him look even more guilty, secondary considerations may have become relevant in deciding whether to waive the Preliminary Hearing. I am told that the prosecutor threatened to ask the Judge to raise his bail if he did not waive the hearing. Since a number of new alleged victims surfaced between the time the bail was originally set and the Preliminary Hearing today the prosecutor could certainly have argued for increased bail. This could have resulted in Sandusky having to wait for his trial in jail, severely hampering his ability to assist his attorney in preparing for trial and perhaps enjoying his last months of freedom. I also believe the prosecutor may have agreed to turn over discovery early in exhange for the waiver, which is something the defense very much wants. They need to work through all of the statements and police reports with a fine tooth comb to determine the strength and merits of the case before they can decide what move to make next. For these reasons, and perhaps many more, it may very well make sense that Jerry Sandusky waived his Preliminary Hearing yet vowed to “fight all four quarters” in this case.