Editor’s note: Richard Gabriel is the president of Decision Analysis, a national trial consulting company and President of the American Society of Trial Consultants Foundation. He has worked on the Casey Anthony and O.J. Simpson cases and is the co-author of "Jury Selection: Strategy and Science".
Jerry Sandusky, the former Penn State coach, has been under house arrest since being charged with sexually abusing 10 boys for at least 15 years.
Jerry Sandusky is entitled to a jury of his peers. And the 16 people who have just been sworn to decide his case strongly fulfill that requirement.
About half of the total 16 chosen jurors in the case have ties to Penn State . The husband of one of the jurors works with the father of one of the key witnesses. Juror #7 works part time for the school’s athletic department. Juror #12 is a Penn State professor of 24 years who has read the grand jury report. One of the jurors has been a Nittany Lions season ticket-holder since the 1970s and one of the alternates heard Sandusky speak at her graduation.
This familiarity with the defendant, the school, and the witnesses, as well as immense local coverage, turns the traditional “impartial jury” on its ear and presents challenges for the prosecution, the defense, and the jurors themselves.
Prosecutors, concerned with the venue’s strong ties to the school, asked Judge John Cleland to move the trial to another county. They may be rightfully worried that the current jurors devoted to the school or the football program may not want to believe Sandusky is capable of such conduct, creating reasonable doubt to reassure themselves that this kind of thing can’t happen in their own back yard. They also may not want to see the scandal further tarnish the reputation of a school they have close ties to.
However, defense attorneys also have cause for apprehension. Jurors who have affiliations to the school may judge Sandusky more harshly to distance themselves from the horrific accusations. They could see themselves as administrators and communicate a zero tolerance policy with a conviction, under the “one bad apple” theory.
Cleland has assiduously asked jurors whether they can “put aside” what they have heard, seen or expressed about the case. Impossible. All jurors have life experiences and beliefs that affect the way they look at the world and ultimately evidence in a case. For example, Juror #9 is a retired school bus driver who says, " I just can't see our children hurt." Will she see herself as a protector, guarding the alleged victims as she would the kids on her bus?
While judges routinely ask jurors the “set aside” question, the better question is how will jurors’ experiences and relationship to Penn State affect the way they interpret the evidence? Will they be more forgiving of the defendant, knowing his contributions to the storied football program? Or will they judge him more harshly, condemning even the mere appearance of impropriety?
Only the jurors themselves know the answers to these questions. And this underscores the problem with high-profile cases: There is simply no way to seat an impartial jury. Fair, yes. But impartiality implies indifference or neutrality. With months of coverage and hundreds of stories, juries have a hard time separating what they have already seen in the news and talked about with family, friends, and co-workers from what they hear from the witness stand.
Jurors may have heard evidence that the judge will rule inadmissible or be pressured to render a more socially acceptable conviction, knowing the world is judging them. They may also create a higher burden for prosecutors, making them prove their case “beyond a shadow of a doubt.” Juror #4 said he reached a saturation point two months ago with the case and stopped reading news accounts. He may push prosecutors hard to give him new and different evidence from what he has already heard.
Pre-trial publicity, tweets, blogs, and running commentary on the news forces prospective jurors to prejudge the case. And then to try and “set aside” their prejudgment.
Jurors are fair and they struggle mightily to do the right thing. But the 24/7 news cycle makes us all jurors, putting more pressure on local jurors who know the defendant, the witnesses, and are already dealing with a highly emotional subject.
Cleland, when questioning a prospective juror, conceded that it might be hard for him to put aside his emotional ties to the school, but added, "I hope it's hard for everyone. If it's easy, we have the wrong jury."
Whatever the outcome in this case, as we sit back in our jury box at home and prepare for opening statements, lets make sure we appreciate the tough job these jurors, the judge and the attorneys will have in balancing those scales of justice.