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Sandusky Again Seeking New Trial

by on May 18, 2020 8:09 PM

Jerry Sandusky is once again asking a state appellate court for a new trial.

Attorneys Philip Lauer and Al Lindsay filed motions earlier this month in Pennsylvania Superior Court seeking the release of or a new trial for Sandusky, the former Penn State football assistant coach and Second Mile charity founder who was convicted in 2012 on 45 counts of child sexual abuse. 

Among the issues raised in the new motions, Lauer and Lindsay allege that state prosecutors colluded with Louis Freeh's team that was commissioned by Penn State to investigate the university's own handling of allegations about Sandusky. That collaboration was a "de facto joint investigation," that Sandusky's trial attorney, Joe Amendola, was never informed about and improperly influenced the course of the trial, the motions claim.

They also allege that the state Office of the Attorney General engaged in ongoing leaks of confidential grand jury information, misconduct they say should result in a dismissal of the original charges or a new trial.

It's the latest attempt by Sandusky to have his conviction overturned. Last year Superior Court denied him a new trial but ordered that he be sentenced again, finding trial Judge John Cleland improperly applied mandatory minimums. In November, specially presiding Judge Maureen Skerda imposed a different sentencing structure but totaling the same 30-60 years Sandusky originally received, retroactive to 2012.

In the new motions, Lauer and Lindsay say they have come into possession of a diary purportedly kept by Kathleen McChesney, a former FBI agent who served as a lead investigator on Freeh's Penn State team. The diary, along with emails between the Freeh group and the attorney general's office, "indicate that there were substantial communications," between the private investigators and prosecutors, the motions say.

The diary, which was filed under seal but has been detailed by investigative journalist Ralph Cipriano, allegedly bolsters an argument Sandusky's attorneys have made throughout post-conviction proceedings — that prosecutors and other agents of the attorney general's office "were leaking information and testimony from the grand jury on an ongoing basis, before, during and after the issuance of the presentment in this case."

During jury selection, the motions also state, a Penn State faculty member who was later accepted as a juror said she had been interviewed by Freeh's team but that the questions were only about university governance and faculty members interactions with the president and the Board of Trustees. Sandusky's attorneys say prosecutors should have divulged at that time that they were collaborating with the Freeh team but did not.

Amendola said in an affidavit that had he known the two investigations were collaborating, he would have approached jury selection differently and would have sought discovery of statements and materials obtained by the Freeh team.

Lauer and Lindsay said they received "a copy of a document which purports to be a summary of an interview conducted" by Freeh investigators with the juror and that the interview "included something more than how the Penn State faculty interacted with the President and the Board of Trustees."

They also cite the review of the Freeh team's source material conducted by seven Penn State trustees, who wrote in a report that interview subjects were subjected to "coercive techniques" by the investigators.

The motions also suggest that the collaboration between the Freeh team and prosecutors played a role in Sandusky's case being rushed to trial. Sandusky was arrested in November 2011, had a preliminary hearing in December and went to trial in June 2012. Amendola said nearly every request for a continuance was denied, as was his request to withdraw as counsel when he told Cleland he was unprepared to go to trial.

The Freeh report was issued in July 2012 and two weeks later Penn State entered a consent decree with the NCAA that spared the football program from the "death penalty" but imposed heavy, unprecedented sanctions ahead of the 2012 season. Neither the report nor the sanctions could have happened without there first being a conviction, Lauer and Lindsay wrote, adding that the McChesney diary and email summaries indicated communications between the Freeh group and prosecutors regarding the timing of the report and the trial. They also question whether Cleland had any communication with the Freeh group or separately with the attorney general's office about timing.

"The absence of disclosure of the grand jury leaks and the significant cooperation between the grand jury and the Freeh group significantly impaired trial counsel's ability to prepare for trial, and conduct meaningful and effective cross-examination on many issues relating to potential motivations for witnessestestimony, the timing of the trial, as well as effective examination of potential jurors on similar issues," they wrote.

While they are seeking dismissal of the case or a new trial, Lauer and Lindsay also requested the case be remanded to trial court for a hearing to resolve factual issues. They expect that Freeh, McChesney and other members of the investigative team would be called as witnesses, as well as former Penn State trustees Kenneth Frazier and Ronald Tomalis, who led the board committee that worked with Freeh. Other witnesses would include Amendola, Cleland and former prosecutors Frank Fina and Jonelle Eshbach.

Sandusky, 76, is currently incarcerated at Laurel Highlands state prison in Somerset County. Lindsay has previously indicated that if options at the state court level were exhausted, he could appeal in federal court.

Geoff Rushton is managing editor for Contact him at [email protected] or find him on Twitter at @geoffrushton.
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