The Sandusky Hearing and the Cost of Overzealous Prosecution

A judge has granted former Penn State football coach Jerry Sandusky an evidentiary hearing to examine his key accuser’s desire to recant his testimony that he had been sexually abused by the coach. The accuser, known as Victim 10, who testified for the prosecution, now claims that Sandusky never abused him. Alleging that prosecutors coached him in order to steer his testimony and asked him to revisit and reframe his allegations, the accuser wrote in a sworn affidavit that “throughout the pretrial process, I was told both directly and indirectly—that trauma may have fragmented my memory, and that I could safely affirm details I did not fully recall. I was assured this was common and even expected.”

This kind of allegedly coached “memory work” set the stage for what came next: a university leadership that moved swiftly to signal guilt long before any evidence was tested. On November 9, 2011, a week after the allegations of abuse by Sandusky became public, the Penn State Board of Trustees removed head coach Joe Paterno; and Graham Spanier, President of Penn State stepped down. This was a year before Sandusky’s trial even began.

This decision by Penn State obviously contributed to the perception of Sandusky’s guilt—long before any evidence was presented. But in the hypervigilant climate that surrounded any allegation of sexual abuse that had emerged, it is understandable that the university would act so quickly.

In 2012, no one was surprised when Sandusky was convicted and sentenced to 30-60 years—he has been in prison for nearly 15 years now. He had already been found guilty in the media. The university removed the statue of their once-beloved Paterno from its prominent place at Penn State’s stadium—suggesting that the head coach was complicit in what was becoming defined as the cover-up.  

Still, it is quite possible that Sandusky is innocent of these charges. It would not be the first time that prosecutors were found to have worked closely with social workers and therapists to obtain “recovered memories” from young children and teens.

Catholics will recall the dark days of the clergy abuse scandal when many priests were wrongly accused. Although there were, of course, abusive priests like Theodore McCarrick, there have been many false allegations against innocent priests. While some—like the 130 men in the Chicago diocese—conspired to create bogus charges against the Church for monetary gain, other prosecutors relied on recovered memories to indict (sometimes) innocent priests.

The concept of “recovered memories” has been shown to be false and has led to what we now know as “false memory syndrome.” The late Wall Street Journal reporter Dorothy Rabinowitz documented many of these cases in her book No Crueler Tyrannies: Accusation, False Witness, and other Terrors of our Times. But for the past 30 years, overzealous American prosecutors—perhaps to appease a panicked public—have abused their authority by coaching, pressuring, and sometimes actually manufacturing the testimony they needed to convict. 

This was a pattern most visible in high profile sex-abuse cases. Perhaps the most extreme instance of this occurred in the 1980s when allegations of child sexual abuse were leveled against the McMartin Preschool in Manhattan Beach, California, where a single fabricated claim by the parent of one student expanded into a panic-driven estimate that at least 1,200 children had been sexually molested. The panic spread so quickly that, within a short time, hundreds of preschools throughout the country were closed and dozens of daycare workers were falsely convicted, stigmatized, and imprisoned.

During these early days of the sexual abuse crisis, the allegations of abuse involved nearly identical stories of children being molested by daycare workers dressed up as satanic priests or fearsome clowns, wielding knives and other instruments of torture in secret rooms and underground tunnels. Many innocent people served years in prison after being convicted. One such case I became familiar with while I was living in San Diego involved Dale Akiki—a volunteer preschool teacher at the Faith Chapel, a 3,500 member Christian church in San Diego. 

The New York Times reported that Akiki, age 35, was charged with 45 counts of torture, sexual abuse, and kidnapping that prosecutors say occurred between June 1, 1988, and September 1, 1989. San Diego’s District Attorney—who was up for reelection that year—pursued the case even though there was no evidence. The prosecutor in the case claimed that the young preschool children told tales of Akiki sexually abusing them, cutting them with knives, and sacrificing large animals—including tigers and elephants—in the tunnels beneath the daycare center.

None of it was true. The allegations were preposterous. No child was ever injured, and there was absolutely no evidence of any crime; but Dale Akiki spent nearly three years in jail while awaiting trial—where he was, of course, vindicated of all charges.

A Grand Jury report on the Akiki case rebuked the prosecution. The foreman of the grand jury was quoted in The New York Times as concluding that “Overzealous prosecution can lead to injustice. Lawyers should try cases, not causes.” The overzealous prosecution cost San Diego’s District Attorney his bid for renomination in the 1994 primary, abruptly ending his 24‑year tenure in office. 

Akiki was fortunate to have a courageous and dedicated public defender who demonstrated that he had been subjected to a witch hunt in the supercharged culture that surrounded child abuse allegations. She successfully demonstrated that the preschool children had been coached by therapists and social workers after months of the children having denied that any molestation had occurred. Akiki’s lawyer suggested:

Each and every allegation from the first to the last was the result of direct, suggestive and leading question by either the parents of the child, the therapists that the child was taken to, or by evaluators in the criminal justice system.

Leading to all of this was the passage of the 1974 Child Abuse Prevention and Treatment Act, which gave federal funds to states that identified abused children and prosecuted abusers. This provided a financial windfall to states—and an incentive to find abuse where it might be found. A huge bureaucracy evolved with the expansion of child protection agencies and staff who were anxious to conduct child abuse investigations on a grand scale.

This was, of course, a good thing because child abuse needed to be exposed and addressed. Many children’s lives were saved. But it also opened the door to thousands of false accusations as too many prosecutors seemed intent on finding abuse where none existed.

As a result of all of this, a form of moral panic emerged. Sociologists use the term “moral panic” to describe a form of collective behavior characterized by widely circulating rumors which greatly exaggerate the threat posed by some form of deviance. In a moral panic, there is a heightened level of concern over the behavior of a certain group and a greater than normal fear about the consequences of this behavior for the rest of society. No rational person could have believed that large animals were being sacrificed in tunnels under a church—but in a moral panic, people will believe almost anything.

The real tragedy is that Jerry Sandusky entered this same cultural moment with a legal team that was wholly unequipped to challenge it. Unlike Akiki—who was saved only because a relentless public defender dismantled the fantastical allegations against him—Sandusky faced prosecutors operating with the full confidence of a system that had spent decades rewarding aggressive, memory‑shaping tactics. His defense never mounted the kind of rigorous challenge that exposed the Akiki case as a witch hunt.

Instead, Sandusky was swept along by the momentum of a moral panic that treated accusation as proof and coached recollections as unquestionable truth. Penn State contributed to the panic and the certainty of conviction by removing Coach Paterno and the president of the university even before any allegations had been proven.

While one of Sandusky’s accusers has come forward, there is still a great deal of evidence against the former coach. Former FBI director Louis Freeh’s 2012 report on the FBI investigation of the allegations of abuse was described in the media as “devastating in its allegations” against Sandusky and the leadership of Penn State. And even though Sandusky has maintained his innocence all these years, and his wife claims that the abuse could not possibly have occurred in their home the way prosecutors alleged, it will be a long and challenging road to a new trial and any possibility of exoneration. 

Still, Los Angeles-based journalist and filmmaker John Ziegler  has spent more than a decade gathering evidence that he claims will exonerate Sandusky. Ziegler claims that he is convinced of Sandusky’s innocence. The hearing to review the retraction by his accuser is just the first small step toward the possibility of a new trial. 

The evidentiary hearing does not guarantee exoneration, but it does signal that the justice system—however slowly—can still correct its own excesses. If Victim 10’s recantation is allowed to be heard, and if the court is willing to confront the allegations of serious prosecutorial issues that may have negatively shaped the original case, then Sandusky may finally receive the fair scrutiny he was denied. In an era when moral panics have destroyed countless innocent lives, the possibility that one of the most infamous cases might be reconsidered offers a reminder that justice can still move toward the truth—wherever that can be found.