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Penn State sex abuse scandal: Sandusky legal move raises questions about strategy

Jerry Sandusky waived his preliminary hearing Tuesday in a surprise decision that moves him toward a trial. NBC's Michael Isikoff has more.

Will he plead guilty? Will he go to trial?

Legal experts and observers were left guessing Tuesday after Former Penn State football assistant coach Jerry Sandusky waived a preliminary hearing in his sex-abuse trial.

The move is raising some perplexing questions about his legal strategy.

Criminal-defense attorneys not connected with the case say it’s highly unusual for a defense attorney to waive the hearing if the case is going to trial. One major reason for doing so would be if there’s a plea deal in the works.

“I can’t speak for him (Sandusky’s lawyer), but if it’s going to trial … I’m having a (preliminary) hearing,” says John Kusturiss, a Pennsylvania criminal defense lawyer and former assistant district attorney who has handled hundreds of criminal cases. “Conversely, if I think I’m going to plea, there have been many I’ve waived.”

But both sides in the Sandusky case say there have been no plea negotiations.

“It’s actually quite confusing in my opinion,” Pennsylvania defense attorney Michael J. Malloy told msnbc.com.

“Typically it would be a sign that there’s a plea deal going on, but the attorney general has said there are no indications a deal is going on. Secondly, the defense attorney said they were getting ready to go to trial,” said Malloy, who has tried more than 100 jury trials, including sex assault cases, in state and federal courts.

Joseph Amendola, Sandusky's defense attorney, says there will be no plea negotiations. "This is a fight to the death," he told reporters.

Amendola called the cancellation of Tuesday's hearing a "tactical decision" to prevent the accusers from reiterating the same claims they made to the grand jury.

Senior Deputy Attorney General E. Marc Costanzo also said there had been no discussions about a plea bargain. He said the move to waive the hearing "provides maximum protection to most importantly the victims in this case."

"It avoids their having to testify for a second time," Costanzo told reporters. "They will of course testify at a trial in the case."

A preliminary hearing would have allowed Sandusky’s legal team to see and evaluate Sandusky’s accusers face to face. Defense lawyers use what’s gleaned from the hearing to prepare for trial. They look for inconsistencies in what’s said by the accusers at the preliminary hearing versus what’s said at trial.

In a preliminary hearing, a defense attorney can find out “how sympathetic a witness is, how good a witness is. You don’t know that when you hear them testify for the first time (at trial),” Kusturiss said.

“You have the advantage of listening to the victims testify, which I would think you would want to take advantage of if you went to trial, for any possible inconsistencies as well as help prepare your defense,” said defense attorney Scott Galloway.

By waiving the hearing, "you give up all that info," Malloy says.

“It’s more confusing than anything. It’s nothing that I’ve seen. I don’t really understand it. The general rule of thumb is, if you’re going to go to trial you definitely should have a preliminary hearing.”

Sandusky, 67, has maintained his innocence on 52 charges of molesting 10 boys over more than a decade. Sandusky told reporters as he left the courthouse that he would "stay the course, to fight for four quarters" and "wait for the opportunity to present our side."

Sandusky also will waive his arraignment, which had been scheduled for Jan. 11, Amendola said. He remains under house arrest.

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