Trial is Not a Crime in America

Not being a regular reader of sport reporting, I wasn’t familiar with Rick Reilly.   Eric Mayer explained him to me:

Rick Reilly has done sports-related human interest columns for years, first at Sports Illustrated and now at ESPN. He focuses on sports figures, but not purely their on-the-field accomplishments. Normally, he focuses on some other aspect, like their philanthropy, overcoming childhood adversity, and the like. He either shows an undue amount of sympathy or an undue lack of sympathy. Rarely is there middle ground.

He is not a lawyer.

Which makes him like most people who aren’t lawyers. And like most people who are.  Even criminal defense lawyers, capable of expressing blustery argument in support of their own clients, especially when there is no one to argue the other side, are inclined to go black and white when it’s some sports hero’s butt on the line.

Now that Roger the Rocket has been acquitted, the eyes of the sporting world have turned to Jerry Sandusky, who still maintains his broad smile during his trial for 51 counts of sexually abusing boys.  Rick Reilly says he’s a “coward.”

Testifying under their own names, they wept. They whispered. They trembled. One left the courthouse with a black bag over his head. Justice shouldn’t cost this much

But all eight of these young men, ages 18 to 28, had to testify because Jerry Sandusky didn’t have the guts or the courage or the decency to cop a plea and go to jail. He could’ve saved them the pain, the shame and the degradation.  

If Sandusky really did abuse them the first time, then this was the second.

It may well be a steep price, but this is exactly what “justice” should cost.  Though Reilly is kind enough to include the caveat, “if Sandusky really did abuse them,” which may reflect his pen or may have been forced upon him by the lawyers, he doesn’t really mean it.  He has Sandusky convicted and is arguing sentence. 

The hell, the anguish and the torment Sandusky put these boys through was cruel enough. To make them relive it in front of brothers and sisters, strangers and jurors, public and media, is unforgivable.

Let’s hope the judge sends Sandusky away for the rest of his days, into the general population at a federal prison, not a protected one.

Let’s see how the tickle monster goes over with those guys.

When it comes to retribution for those who sexually molest children, I’m not terribly far away from Reilly.  I would, however, wait for a verdict before I throw him into the yard. 

But these trials are the ones that test us.  As much as we may revile an alleged crime, and empathize with the purported victims, we have a system by which people accused of crimes are entitled, entitled as in it is their absolute right, to challenge their accusations before we punish them.  The right to a trial isn’t protected for those we favor and denied to those we don’t.  It isn’t limited to those about whom the public thinks a doubt may exist and denied to those we don’t. 

It isn’t balanced with our concerns for the pain a trial may cause a victim against the benefit of trial theater to a defendant we’ve already convicted.  Everyone accused of a crime is entitled to a trial. This is the American way.

If Reilly thinks Sandusky is a coward, then I think Reilly is unAmerican.

In my country, the idea of someone being innocent until proven guilty is a bedrock principle, no matter how disgusting the crime of which they’re accused, no matter how overwhelming the evidence appears and no matter how ridiculous the excuses in defense.  It is not the defendant’s burden to prove he’s not guilty, but the prosecution’s burden to prove he is. 

This trial isn’t about Sandusky explaining his conduct, whether he claims to be teaching young men how to use soap in the Penn State locker room showers, or playing “tickle monster” with their genitals.  This trial is about the government proving that a person committed a crime.  Only after that happens do we get to ponder how other inmates will welcome him into the fold.

Is it ugly and painful for victims of a crime? Absolutely.  And it’s ugly for the innocent person who spends 30 years in prison because this system, the trial, does such a lousy job of distinguishing the guilty from the innocent.  It may turn out that the system works better in this trial than most, given the evidence against Sandusky, but that doesn’t mean he doesn’t enjoy the right to a trial.

Reilly may see the evidence against Jerry Sandusky as overwhelming, leaving no doubt in his mind that he’s guilty as sin.  He’s allowed, especially since he gets no vote on the jury and its mere puffery at this point.  But Reilly has no call to diminish Sandusky’s exercise of his constitutional right to trial by calling him a coward for doing so.

In America, defendant’s get tried and, if the prosecution proves its case beyond a reasonable doubt, then convicted. We don’t divvy up trials between those who may be not be guilty and those we all know are guilty beforehand and don’t deserve the rights of Americans.  As much as we may empathize with those who will be rightfully called victims should a conviction follow, this is the cost levied by the system on everyone, innocent, guilty, victim and accuser. 

As Eric noted, Reilly is not a lawyer.  But if he’s an American, then he ought to know how we do things here. You don’t have to be a lawyer to realize that our freedoms demand that Jerry Sandusky get a trial. When Reilly attacks Sandusky for exercising his rights, he attacks America for having a Constitution that protects its freedoms.  Not very sporting of him.

22 comments on “Trial is Not a Crime in America

  1. Marc R

    I’m a criminal defense attorney, but like you and Reilly, I’m not on the jury. Nobody but the jury owes Sandusky anything. He chose to speak to the media and sound horrific (though not necessarily “guilty”) in answering whether he’s sexually attracted to young children. He willingly spoke out that he showered with young kids at a day camp and tickled them nude. Maybe he won’t be found guilty. Who cares? Why’s it wrong to judge his character based on what he publicized to us?

  2. SHG

    Be as judgmental toward Sandusky as you want, but don’t condemn him for exercising his right to trial.

  3. Michael Yuri

    Emily Bazelon said similar things last week at Slate:

    [Ed. Note: Link deleted per rules.]

    From the opening paragraph: “I know we are supposed to believe in the presumption of innocence and wait for the full defense to have its say. This time, I don’t care. Sandusky should end this pathetic travesty right now—by pleading guilty.”

  4. SHG

    While Bazelon’s comments are similar, she readily admits she is wrong and hers is the product of personal prejudice in this particular instance.  Still, it’s really quite disgraceful and she should be ashamed of bolstering the fundamentally misguided belief that it’s somehow wrong for a criminal defendant to put the prosecution to its proof.

  5. Jim Majkowski

    This time, Scott, I quibble. There’s no doubt that the Commonwealth of Pennsylvania has the obligation to prove Sandusky guilty, and to do so by means consistent with the law, including public confrontation. The apparent guilt of the defendant, however strong, cannot justify relaxing the requirements one iota. And it is surely the duty of the lawyers charged with the accused’s defense to insist on every jot and tittle of those burdens, and of the judge to enforce the accused’s rights. But that doesn’t mean that any individual isn’t allowed to think ill of Sandusky for exercising his rights. Before forgiveness comes contrition.

  6. SHG

    Like I said, think ill of Sandusky all you want. I understand. Just don’t attack “guilty” defendants for exercising their right to trial.

  7. Miranda

    It’s been my experience that the defendants who go to trial are the brave ones. It’s far easier to take a plea bargain and avoid the crushing stress and fear of putting yourself in the hands of a jury.

  8. John Neff

    It seems to me there are two common (how common I cannot tell) assumptions: 1) the accused is guilty and 2) they should have plea bargained. My observation is that a plea bargain is not an realistic option in a high profile case.

  9. SHG

    A corollary assumption is that every defendant is offered a deal. In high profile cases and very serious cases, there may be an offer, but it’s no bargain, leaving the defendant with no meaningful choice.

  10. Kirk Taylor

    I think Rick poorly stated a feeling that many of us have. That while it is a person’s right to have a fair trial and a presumption of innocence, it is our right to judge them. More importantly, laymen, like me, feel that rights are there to protect the innocent, and that the honorable (though not legally required) thing, would be for a guilty person to admit their crime and take their punishment.

    The problem Rick and I run into is that we don’t actually know who the innocent or guilty are. My disgust for a criminal goes down (just a little) when they admit to the crime and take the punishment.

    Rick assumes Sandusky is guilty, I do too. IF that’s true, it is a further awful act to take this to trial. It’s his right, but that does not make it okay. Just legal.

  11. SHG

    Yeah, if only those damn guilty people wouldn’t stop screwin’ it up for the innocent ones, we would all be better off.

    Got it.

    You are scary wrong. Rights aren’t just for the innocent, even if there was some magic way laymen a thousand miles away could use your “right to judge them.” Rights are for everyone. Even you. Even if you’re guilty. That you can’t grasp this makes me sad.

  12. KPR

    Great work.

    Our fellow citizens have become lazy. They too often accept the ‘official’ details as reported by the (lazy) media, accept that it makes sense to vote for the lesser of 2 evils, and accept that if a person is on trial, he must be guilty (and if guilty then it is OK for the State to mistreat him in their prisons).

    Finally, while I seldom watch, I’ve heard lawyers on ‘Court TV’ mimic Reilly’s assentiments. Politicians, too. People who should certainly know better.

  13. Kirk Taylor

    Let me clarify. The presumption of innocence is for the innocent (not all rights). I recognize why we have to accord this right to the guilty – because we don’t know the truth. I merely think it adds to their scumbaggery when they compound their guilt by insisting on a trial to claim innocence.

    I understand that legally and constitutionally they have the right to presumption of innocence, I would have it no other way. I merely reserve the right to believe they are an even worse person for demanding a trial to prove what they already know to be true.

  14. SHG

    I understood you the first time. Let me try to explain why I’m sad. First, things don’t always break down into nice clean categories, guilt and innocence. Sometimes there’s some guilty, but not as much as the police say. Other times, there’s guilty, but also wrongdoing on the part of the police or prosecutors. As columnist Murray Kempton used to say, “there they go again, framing the guilty.”

    And sometimes, a person appears (and is shown in the media) to be completely, utterly, 110% GUILTY, GUILTY, GUILTY. Except he’s not. And maybe he even gets convicted (because that can happen, you know), and you think him especially deserving of horrific punishment because you were always certain he was guilty, and still he went to trial.  Except he’s not guilty.

    Moreover, even the guilty (Yes! The GUILTY!!!) who you (and maybe pretty much everyone) is absolutely certain is guilty, get a trial because of what it does for the innocent, by serving as the sacrificial lambs for the ascertainment of rights which, if lost, aren’t there for you (because we know you certainly aren’t guilty of anything) when you need them.

    If we attack people for exercising rights (and note the word, RIGHTS), then they are no longer rights and their exercise, one of the few true entitlements of an American, comes at a price.  If the exercise of rights comes at a price, then they are no longer our rights as Americans as we are no longer entitled to them but have to pay for them.  This is utterly unAmerican, and I will not tolerate such unAmerica thought.

  15. Kirk Taylor

    Very thought provoking points, particularly the second to the last paragraph. I should have, but did not, consider that.

    I am also not advocating that the system be any different than it is. I simply share a feeling, common to many laymen, that it sucks when a victim has to relive their suffering so that a criminal can have his rights.

    It’s true that I can’t say for sure if Sandusky is guilty or not, but their are more than two parties who do – Sandusky and his victims (I understand that it is possible for a victim to believe a crime was committed and be wrong – I’m simplifying.)

    Everything you write is true and correct – it just has to really suck for the victims. If Sandusky truly did everything he’s accused of, I can’t help but hate him more for what he’s doing – that’s emotion, not logic, right/wrong or legality.

  16. SHG

    Now I’m not sad. Your last sentence says it all, that it’s emoiton, not logic. This doesn’t reflect what you think, but how you feel. That’s perfectly understandable, as long as you don’t let your feelings overcome your thinking.

  17. Tony

    I do not begrudge the accused a trial, period. We need the state to stand ready to prosecute every crime. If that means we end up with an overwhelmed court system, that’s because we as a society have criminalized too many petty things. Now that the testimony has concluded, it *should* be a certainty that this monster goes to jail, but that’s where another bedrock principle should apply, but is too often cavalierly dismissed: that the prisoner is the ward of the state. SHG, you seem OK with the concept of “throw[ing] him in the yard.” How is that any more emotional than to demand that the everyone-knows-he’s-guilty defendant not demand trial?
    If someone is deserving after trial to some form of physical punishment — execution, flogging, hard labor — let it be administered under the auspices of the state after appropriate sentence is handed down. The idea that prisoners get what they “deserve” when abused by other prisoners is a failure of principle as much as the mob mentality surrounding pre-judged guilty defendants.

  18. John Spragge

    In my experience, not going to trial can take as big a toll on a community as going to trial. I had the misfortune to belong to a community that suffered a sex abuse scandal, and based on the logic of the position you mention, the desire to spare the victims, the prosecutors offered, and the offender accepted, a plea bargain. The community then turned in on itself and tore itself to bits over the question of who, other than the perpetrator, could have stopped the crime. Since then, I have often thought that the emotional release of formally proving who did what, laying the evidence before a jury, would have proven painful, but it might also have led to a healthier outcome. I remain skeptical of efforts to spare the survivors by permitting them to avoid testifying, since that also means they never get the chance to confront the offender and have the community and its representatives, the jury, formally affirm the wrongful nature of what they suffered.

    The right to a trial, the right to put the matter to proof, also serves the community and the survivors of violence.

  19. SHG

    I don’t really think anyone should get thrown to the wolves in prison, but use it as a way to shift anger off the defendant who has yet to be convicted. Crimes like this bring out a great deal of anger and disgust, something I do share, but redirecting the focus of retribution toward post-conviction is critical.  The emotional aspect of child molestation will never go away, but if people recognize that there is a time for punishment after conviction, they will be more inclined to be await conviction before screaming for execution.

    In other words, first things first. 

  20. Ziran Zhang


    Isn’t it already the case that, in the federal system anyway, a defendant will be “punished” for going to trial. You lose the three points for acceptance of responsibility, and the prosecutor gets to put on the worst facts at trial, and argue at sentencing that the defendant should be punished severely for forcing the victims to testify.

    While I agree with you that ideally, there should be no burden on a defendant’s right to demand a trial, our system is already designed to punish (and punish very severely)those who do go to trial.

  21. SHG

    Sandusky is in the Pennsylvania state court, not federal court. The issue of trial tax, or the additional punishment for not taking a negotiated plea, is an issue, but a completely different one than the subject of this post.

    High profile cases often have a very different dynamic, and there is no plea offered. Thus, no trial tax. But the other side is a 3 level reduction in the guidelines (in federal court) is considered an inducement rathe than a punishment for going to trial. Whether that’s true has long been a subject of debate.

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