During the Sandusky trial, MaleSurvivor Communications Committee Chair Thomas Hodson (who is himself a former attorney, trial judge, and is now a journalist) will be sharing with us some helpful explanations of the stages of a criminal trial. Our hope is that sharing this information here will help people better understand what is going on behind the scenes, and eliminate some of the confusion and uncertainty that will inevitably come up. Please follow our Twitter (@malesurvivorORG) and Facebook pages for more information and reactions as well.
TWO HEARINGS RESULTING IN SANDUSKY’S SENTENCE FOR CONVICTIONS
On Tuesday, Oct. 9, there will be two hearings in the Jerry Sandusky case – back-to-back. The first will be to determine whether Sandusky is a “sexually violent predator” (SVP) and the second is for the judge to determine and announce Sandusky’s sentence for his convictions.
I will briefly explain both separately because, under the law, they are two separate matters.
SEXUALLY VIOLENT PREDATOR (SVP) HEARING: This hearing must take place before sentencing. It will be held first on Tuesday. The judge will order sexual offender notification and registration requirements for Sandusky. The restrictions could last from 10 years to lifetime—just in case Sandusky would ever get out of prison. The amount of time is determined by the judge based on the nature of the crimes, the number of different convictions and whether the court determines Sandusky to be a “sexually violent predator.” To find Sandusky to be a “sexually violent predator,” the judge must determine whether he has a mental abnormality or personality disorder and whether either of those maladies makes him a person “likely to engage in predatory sexually violent offenses.”
To help him make that determination, the judge was required to have the defendant evaluated and assessed by the State Sexual Offenders Assessment Board. The Board gives its report to the Prosecutor. If the Prosecutor requests a hearing (like in this case), the report is shared with the defense.
At the hearing on Tuesday, both sides have the right to make arguments, to call witnesses, to introduce expert testimony, and cross-examine the other side’s witnesses.
For Sandusky to be determined a “sexually violent predator,” the Prosecution has the burden of proof and it must convince the judge by the standard of “clear and convincing evidence.” Obviously, the notification and reporting requirements for an SVP are stricter and longer than for a person who is not an SVP.
SENTENCING HEARING: Sandusky’s sentence will be determined by the judge alone and not by a jury. The jury determines whether someone is guilty but if the defendant is found guilty, the judge alone determines the appropriate sentence.
Between the time of Sandusky’s convictions and sentencing, the judge ordered a Pre-sentence Investigation (PSI). This is usually done by a probation office. The PSI investigates facts and circumstances pertaining to the convictions. It will probe any appropriate factors of the defendant that might lighten a sentence AND just as importantly, the PSI will address issues being faced by victims (a word used in the law – you may substitute survivors if you choose) that might enhance a sentence.
PSI’s usually contain victim impact statements. Each victim of the defendant has the right to comment on the sentencing both in writing and orally. According to Pennsylvania law, the victims can outline for the court the “physical, psychological and economic effects on the victim and the victim’s family.”
At the actual sentencing hearing, both sides may argue for a particular sentence and present evidence that would support their respective positions. Although the hearing is orderly, the strict rules of evidence are “relaxed” – meaning that often hearsay statements can be submitted to the judge along with written affidavits or written statements from people who are not present. Those items would not be strictly permitted under normal rules of evidence at a trial.
The defense may call witnesses to try to convince the judge that a lighter sentence is required – such as no past criminal record, economic factors, family factors, educational background and other background information that the defense believes is germane to the judge’s decision.
The state also can have victims and victims’ families appear and testify to the judge about the impact the crimes had on their lives. In the Sandusky case, it is expected that at least one victim will make a statement and perhaps more.
Finally, the judge must allow the defendant to make a statement on his own behalf. The technical name for this, if you hear it, is “allocution.” The media has hinted that Sandusky has expressed his desire to make such a statement. If he does, it will be the first time that he will speak publically, in court, in this legal process. The defendant’s statement is not subject to cross examination.
Usually, judges give defendants wide latitude on what they may say. Often defendants will apologize to victims or take this opportunity to show some remorse for behavior and make a plea for mercy to the judge. However, some defendants remain defiant about their innocence and use this opportunity to rail against the process and the verdict. A defendant’s remarks are often provocative but they make them at their peril.
We do not know what Sandusky will say in his allocution should he choose make a statement. However, to many survivors his statement may be triggering and initiate strong emotions. Please, be cautious if you read or hear about Sandusky’s statement. If you find yourself feeling triggered please reach out for support to someone. Call your therapist, or post to the community here on the forums, you can also take a look at the following tips : http://www.malesurvivor.org/board/ubbthreads.php?ubb=showflat&Number=400349#Post400349
It is traditional for the judge to pronounce his sentence from the bench after he has heard all of the statements, testimony, and arguments. The judge has much discretion in what sentence he may find appropriate. However, in Pennsylvania, the Court must adhere to established guidelines of the Pennsylvania Commission on Sentencing.
In addition to any period of imprisonment, the judge must order the defendant to make financial restitution to any victims who have suffered financial harm.
Once sentence is pronounced and put into an official court order, the time for appeals then starts running and we will enter into the appellate stage of this case. It is very common for appeals to be filed in cases of this magnitude. If an appeal is filed, survivors should remember that Sandusky would remain in jail as the appeal winds it’s way forward.