Why Sandusky’s Notoriety Helped His Pre-Trial Release Conditions

Judge John Cleland (right) ruled on Monday that Jerry Sandusky (left) can visit his grandchildren and that his trial will be held in State College

On Monday, a Pennsylvania judge made two pre-trial rulings that favored Jerry Sandusky. Sandusky is a former Penn State football coach, now charged with over 50 counts of child molestation. Judge John Cleland denied the State’s request to limit Sandusky to his home, and restrict access to his young grandchildren.  The prosecution also sought to move the trial out of Centre County, which is home to Penn State University.  Judge Cleland denied this motion as well, but added that he would reconsider this decision if selecting a jury proved difficult.

Widener Professor Wesley M. Oliver helps explain some of the legal principals and concerns surrounding Judge Cleland’s rulings on Monday.  Professor Oliver teaches Criminal Law and Criminal procedure at Widener Law’s campus in Harrisburg, PA.  Professor Oliver has frequently represented the National Association of Criminal Defense Lawyers and the Association of Federal Defenders as amicus curiae in matters before the United States Supreme Court. He has taught criminal law at Harvard, Tulane and McGill.

The Judge ruled that Jerry Sandusky should be allowed to see his grandchildren while awaiting trial for child molestation. What factors is the judge supposed to consider when making pre-trial release condition rulings?

Safety would be the primary concern in considering whether Sandusky should see his grandchildren.

How much does the presumption of innocence weigh on the decision?

A corollary of the presumption of innocence is the presumption of bail. Unless the safety of the community or the defendant’s presence can not be secured without the defendant’s detention, he is entitled to bond.

Should cases involving child molestation receive extra scrutiny when determining release conditions?

In most child sex offense cases, special release criteria to ensure the defendant has no access to children make a lot of sense. In Sandusky’s case, everyone knows this guy and no one will let their children around him. His high profile actually alleviates the need for some concern typically associated with accused child sex offenders.

The Judge also ruled that the jury would be composed of local State College residents. The prosecution hoped to get a jury from outside of Centre County because of pervasive media coverage.  When is it appropriate to use an outside jury in a criminal case?

Typically, a trial is moved outside a county, or a jury from another county brought in, when publicity has prejudiced a defendant’s ability to get a fair trial.

The judge also said he would reconsider his ruling regarding a local jury if a jury could not be determined in a reasonable time.  How is it determined whether a potential jury member is unacceptable?

As Judge McCleland alluded to there is often a problem with discovering juror bias. Often if jurors report they can hear the case fairly, they can be seated. We depend on jurors to self-report their biases and that’s not always a good system. If, however, we can’t find enough people in Centre County who say they’ll be impartial, this could require a move.

Could the prosecuting attorneys oppose almost any juror in an attempt to force the judge to reconsider?

They can oppose jurors but unless there’s cause for striking a juror, the prosecution’s objection won’t matter. Without cause for striking a juror, the prosecution can only strike a given number of jurors — each side gets a certain number of peremptory strikes, jurors that can be struck for no reason.

It seems like the whole state has been impacted by “pervasive media coverage.” What kind of dangers does this pose to ensuring a fair trail for Sandusky (or any high profile criminal case)?

There is a practical limit on our ability to correct for unfair publicity. The case is similar to the OJ Simpson case in that everyone knows about this case. The question is whether there is unique impact in the jurisdiction where the crime occurred. There is a good argument that the publicity has had a unique impact on Centre County because its residents are uniquely affected by injury to the Penn State brand. But of course the defendant clearly stated he is not worried about this.


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