Sandusky Hearing Focuses on Repressed Memories

Jerry Sandusky was back in Centre County Court on Thursday as he continues his Post Conviction Relief Act appeal.

Sandusky’s appeal attorneys are arguing that he received ineffective  counsel before, during and after his 2012 trial, where the former Penn State football assistant coach and founder of the Second Mile charity for at-risk youth was convicted on 45 counts of child sexual abuse. He is serving a 30 to 60 year sentence in state prison.

Among the issues they are arguing is that Sandusky’s trial attorneys did not call an expert on the potential use of repressed memory therapy, a disputed and controversial concept in the field of psychology, by some of Sandusky’s victims to recall instances of abuse.

The man identified as Victim 7 at Sandusky’s trial testified on Thursday that he did not undergo repressed memory therapy, but that counseling and psychotherapy helped him to confront memories of abuse.

“I would say I already had that door opened,” he said. “[Therapy] helped me open it a little bit further, peer a little bit deeper inside.”

Sandusky attorney Andrew Salemme asked him about how his statements about Sandusky changed from when he was first interviewed by investigators to when he testified at trial.

Salemme noted that the man first told police he wrestled with Sandusky, but that Sandusky did not kiss him or bear hug him in the shower. He gave similar testimony to the grand jury in April 2011.

“I was reluctant to think back to those events and said as little as possible in hopes it wouldn’t draw attention to myself,” the man testified.

He said after a February 2011 interview with police he first began to realize he should talk to a therapist.

At trial, he testified that Sandusky gave him bear hugs in the shower and put his hands down his pants. He said that through counseling and talking about his past, memories of abuse he said he had blocked out began to come back to him.

He also discussed an interview he gave in 2014 to author Mark Pendergrast, who is writing a book about Sandusky’s possible innocence and who has written in the past disputing repressed memories. The man testified that he spoke with Pendergrast because he seemed like he was “not a typical reporter,” and someone he could open up to.

He said he spoke to Pendergrast about how counseling had helped him reach deeper into his memory and that his therapist had told him he may have repressed memories.

On cross examination by deputy attorney general Jennifer Peterson, the man testified that his therapist described some procedures for repressed memory therapy, such as hypnosis, but that he never underwent them.

Memory Expert Testifies

Elizabeth Loftus, a professor of psychology and law at the University of California-Irvine and an expert who has written extensively about human memory and its malleability, testified by phone from California.

Loftus said her research has found individuals exposed to misinformation after an event can have memories contaminated, and that entirely false memories of events that never happened can be planted.

“There is no credible scientific support for this theory of massive repression,” she said.

Loftus said people can be reminded of a memory they have not thought of in a long time but there is no scientific evidence that memories are walled off and blocked from a person’s consciousness.

She authored a report at the request of Sandusky’s attorneys after reviewing excerpts of witness interviews and testimony.

“It seems pretty evident there were dramatic changes in the testimony of some of the accusers,” she said, adding that in the time between when their stories had changed some had begun psychotherapy and another had been subject to possibly suggestive questioning by police.

Loftus noted Victim 7’s report that his therapist suggested he had repressed memories, and that in an interview with Victim 4, police seemed to tell him what other witnesses had reported.

“One of the major reasons someone’s testimony changes is because they have been exposed to suggestive information that caused a change in their memory,” Loftus said.

She also cited the book “Silent No More,” co-written by Victim 1, who has publicly identified himself as Aaron Fisher, and his therapist, Michael Gillum. She said the details of Fisher’s therapy offered in the book suggest it is “another example of what appears to be a psychotherapist convincing a patient he had repressed memories of sexual abuse.”

Gillum testified at a hearing in March that he helped Fisher address memories of abuse, but that he does not practice repressed memory therapy or believe it is scientifically sound.

Loftus testified that an expert on memory would have been valuable to Sandusky at trial.

On cross-examination, Loftus said she was not concluding that the victims in the three cases she reviewed were never sexually assaulted by Sandusky.

Peterson pressed Loftus on what information she had reviewed, noting that she was provided with transcripts of excerpts from some testimony and interviews, but that she did not request the full transcripts.

Loftus also said on questioning from Peterson that since she did not personally see the trial, she did not observe the witnesses’ body language or tone.

The statements made by the victims led Loftus to conclude they had done some sort of repressed memory therapy, she said, but there was no specific evidence of them undergoing particular memory recovery techniques such as hypnosis, guided visualization or dream interpretation.

That line of questioning drew an objection from Sandusky attorney Al Lindsay. Since Sandusky’s PCRA appeal began, Lindsay and Salemme have been requesting a court review with an expert of therapy notes of some victims to determine what kinds of therapy they underwent. Judge John Cleland, who originally oversaw the case, and Judge John Foradora, who took over this year, both denied motions for that review.

Loftus said there is no statistical information on the number of false memories created by repressed memory therapy because without independent corroboration a memory can’t be proven to be true or false. She said there have been studies of hundreds of individuals who retracted statements of recovered memories.

Gelman Explains Initial Appeal

Prominent criminal defense and appeal attorney Norris Gelman, who represented Sandusky during his initial post-sentencing appeal in 2012, took the stand as Sandusky’s current attorneys sought to bolster the case of ineffective counsel.

Salemme’s questioning largely centered on the case of Victim 8, who was not identified at trial. In that case, prosecutors presented the testimony of Ron Petrosky, a custodian who said he saw the legs of a man and a child in a locker room shower and then later saw Sandusky and a boy exiting the locker room one night in 2000.

Petrosky said he then spoke to co-worker James Calhoun, who was shaken and said he saw Sandusky performing oral sex on the boy.

By the time of Sandusky’s 2012 trial, Calhoun suffered from dementia and could not testify. Calhoun, however, was interviewed by an investigator in May 2011 and said the man he saw was not Sandusky. That interview was not entered into evidence at Sandusky’s trial.

Gelman addressed the issue at length in a post-sentencing brief, but did not raise it during oral arguments before Superior Court on direct appeal, even though Cleland said the issue would benefit from an appellate court’s review.

He testified Thursday that he mostly included it in the brief to cause more work for lead prosecutor Joe McGettigan.

“I had no love for Mr. McGettigan,” Gelman said. “I raised the issue to get the attorney generals to spend time working on it. It was bait to frustrate them.”

Gelman said even if an appeals court found in his favor on that issue, it would have done little to benefit Sandusky since the verdicts in the other cases would have stood and because the sentence in the Victim 8 case was to be concurrent with other sentences.

“It would have drawn attention from other issues which could have benefitted Jerry Sandusky tremendously,” he said.

He later explained that the Supreme Court has held that an appeal attorney has the responsibility to winnow out the strongest issues.

Sandusky’s attorneys have previously focused their ineffective counsel arguments on his trial attorneys, Joe Amendola and Karl Rominger.

During cross-examination, Peterson’s questioning included Gelman’s long history as a high-profile attorney. Gelman was the attorney for former Philadelphia mob boss Nicodemo “Little Nicky” Scarfo and Ira Einhorn, a counterculture figure convicted of the murder of his girlfriend.

In Centre County, Gelman led the successful appeal of Daniel Purtell, a Penn State student convicted in 2002 of sexual assault. With Gelman as his appeal attorney, Purtell had the conviction overturned in 2004.

In his arguments for Sandusky’s appeal, Gelman was commended by the Superior Court for his “able representation and forthright argument,” a compliment both Peterson and Gelman described as rare.

Another evidentiary hearing is scheduled for May 26.