It just might work.
After a week of devastating testimony- graphic, compelling accounts from eight victims, plus eye-witness observations regarding two others, it seems the prosecution team has proven its case. McGattigan and team prepared their witnesses extremely well, and above all the victims themselves performed brilliantly and bravely, holding up well under cross-examination.
But a courtroom is a closed universe, and Joseph Amendola has not earned his reputation as a trial lawyer without being dogged, creative, and resourceful. In my view, he’s conceived of a defense that might find purchase: Histrionic Personality Disorder (HPD).
The personality disorders (known as Axis II disorders in the Diagnostic and Statistical Manual of Mental Disorders, or the DSM) are probably best described as ways of navigating the world- over the lifespan- that create objectively and recognizably negative consequences for the sufferer. I lack a psychology background, but I dealt with Axis II disorders when prosecuting civil management cases in New York and seeking to steer convicted offenders into mental health treatment.
The disorder Sandusky’s team claims he has is one that involves symptoms that dovetail well with what he cannot deny. He has to explain the letters he wrote, described by victims as creepy, clingy and desperate. He can’t deny close quarters showering with boys or excessive hands-on touching of them either; these things are well documented and Sandusky admits to some of them. The right defense expert could reasonably describe these acts as attributable to HPD. It is usually but not exclusively diagnosed in women. It involves things like acting seductively in inappropriate situations, believing relationships to be more intimate then they actually are, having a desperate need for affection, and a failure to accept emotional separation.
Psychologists consulted on the defense last week understandably fail to see its relevance to child sex abuse. But they’re thinking psychologically. Amendola and co-counsel Karl Rominger are thinking legally and strategically.
So here it is: Build a defense around what could be a kernel of truth (that Sandusky is mentally ill in some way), useful to explain everything short of the criminal acts the victims recounted. The defense must still explain McQueary’s and the custodian’s observations, but let’s say for a moment they can can convince the jury that both observers were sincere but possibly mistaken.
Then we’re left with the testimony of the victims, which Amendola told them is untrue. It seems difficult to believe that 8 men, one after the other in grueling succession, would fabricate such horrifying details. But what if the defense doesn’t ask the jury to disregard everything the victims said- just most of it? What if they offer evidence that Sandusky was deeply troubled, just not a sex offender? Then, doubt gets easier to plant. With evidence of HPD, the defense gives the jurors wiggle room with how to view victim testimony. They can go as far to as to say “look, in a way, these boys were mistreated by Jerry. He was ill, and he probably did unintentionally cause them some harm.”
But then the kicker: “But ladies and gentlemen, tragically, this is what empowers them to now to collude with each other and grossly embellish the things Jerry did, with lies about how it become sexual.”
This defense doesn’t require a complete repudiation of the victims as sympathetic figures- something very important after such heart-breaking testimony. First, Amendola has already hinted at their “troubled” nature as Second Mile kids to suggest why they are willing to lie about such a serious subject. Second, the defense can still frame the boys as “victims,” just not ones of sexual abuse.
“Indeed, they are victims. They were first victims of life. Then of Jerry, because of a mental illness that led him to treat them too lovingly, too emotionally, too paternally. Now, they are victims of a system that has tempted them to lie, whether it be for financial gain, or simply to strike back at a man who perhaps did unwittingly hurt them. But make no mistake- he didn’t hurt them in the way you’ve heard. Jerry Sundusky is a victim as well. He was then, of an illness. He is now, of this prosecution.”
It’s going to be interesting.