How the Media May Have Already Doomed Jerry Sandusky

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By publishing sensational accounts, journalists often convict a suspect before a judge and jury do

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Reuters

Diogenes would have an easier time finding an honest man than one who honestly presumes that Jerry Sandusky is innocent. In part, after his shockingly incriminating interview with NBC, Sandusky has himself and his lawyer to blame for widespread presumptions of his guilt. But before he ever sat for the interview, the former assistant football coach had been convicted in the press.

"It's often hard not to form a private opinion, or suspicion, about guilt or innocence in a high profile case -- especially when you're in the business of opinionating."

Respecting the presumption of innocence in sensational cases, when evidence of guilt seems strong, is always a challenge, particularly for pundits and columnists who are professionally inclined or even compelled to rush to judgment. No matter how diligently they use the word "alleged" in discussing a high profile case, their presumptions of guilt often come clear. Sandusky is a "monster," the Boston Globe's Dan Shaughnessy stated last week. In a  November 11th column in New York Times, Joe Nocera more carefully referenced Sandusky and his alleged crimes; but in comparing the Penn State scandal to sex abuse cover-ups by the Catholic Church, Nocera left little reason to doubt his belief about Sandusky's guilt. "Everyone at Penn State who averted their eyes had to know they were doing something abhorrent," he writes. 

I don't mean to pick on Shaughnessy or Nocera, whose work I respect. I simply want to underscore the difficulties of writing about pending criminal cases. It's often hard not to form a private opinion, or suspicion, about guilt or innocence in a high profile case and harder still to keep that opinion to yourself -- especially when you're in the business of opinionating. But appearances of guilt can be deceptive, as the Dominique Strauss-Kahn debacle showed, and agnosticism is generally the safest as well as fairest approach to questions of guilt, pre-trial. As Patricia Williams warned in a thoughtful, early column in The Nation on the Strauss-Kahn case. "We do not know what happened. We can choose to believe what we want, but it serves no civic purpose to allow one's personal hunches to stand in the way of being open to the specific evidence-based possibilities that will be presented in a court of law."

In the Sandusky case, we have more reason to think we know what happened, given his admission that he "horsed around" with boys in the shower. But we don't know his state of mind or mental capacity. Nor do we know exactly what graduate student Mike McQueary did when he allegedly saw Sandusky raping a child; having been excoriated for walking away and not reporting to law enforcement authorities, McQueary now claims, "I didn't just turn and run ... I made sure it stopped." Who knows? Maybe he intervened in a "horsing around" session, and maybe he didn't. 

McQueary hasn't been charged with any crime, but he's been presumed guilty of acting immorally, and his presumed guilt, along with presumptions about Sandusky's guilt, have sparked a predictable drive to tighten existing mandatory child abuse reporting laws in Pennsylvania and other states. (All states have reporting laws, varying in scope and stringency.) Pennsylvania requires staff at educational institutions to report suspected abuse to their institutional superiors but not directly to law enforcement (which is apparently why neither McQueary nor Joe Paterno, both of whom reported internally, have not been charged.) Mandatory reporting laws can easily pass a public popularity test. I haven't seen any polling data on the subject, but I bet that strict new reporting laws in Pennsylvania would enjoy overwhelming majority support.

Opposing or even questioning the utility of child abuse reporting laws, you're likely to be accused of supporting child abuse. But penal laws enacted quickly in response to scandal should always be questioned and often opposed. They're reactive, not rational or reflective; like sex offender registration or three strikes statutes, they're laws of dire unintended consequences. Besides, I've seen no evidence that reporting laws, which date back decades, have decreased the incidence of abuse. They may, however, decrease the effectiveness of professionals who deal with abused children or their alleged abusers -- professionals like psychiatrists or physicians who are required in some states to breach confidentiality rules and report suspected abuse to authorities. Pennsylvania law only respects attorney client privilege and communications to clergy; no other privileges confer exemptions under state reporting requirements. 

We might also question the implicit authoritarianism of laws that require all citizens to inform on each other. In Pennsylvania, the state legislature is exhorted to require "any witness to child abuse (to) call the police." In Missouri, the Attorney General has called for similar reporting requirements, in the belief that "We are all mandatory reporters." In other words, none of us should ever be trusted to exercise discretion when we suspect child abuse or neglect. Instead we should all be required to rely on the discretion of state officials and report our suspicions. 

And to whom should we all report? To child welfare or police or other public sector workers whose jobs and salaries are prime targets of budget cutters, to workers (or bureaucrats) who are no more trusted and no more inherently trustworthy than football coaches and university presidents. How do you reconcile calls for a universal informant requirement with widespread mistrust and dislike of government? You can't. You can only wonder how to proceed when we trust neither the government nor each other. 

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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