Barry Feudale doesn’t believe he should be required to testify in Jerry Sandusky’s hearing seeking a new trial.
An attorney for the former grand jury judge who presided over the statewide grand jury that investigated Sandusky filed a response brief Thursday that continued to argue judicial privilege and grand jury secrecy should preclude Feudale from testifying in a hearing for Sandusky’s Post-Conviction Relief Act petition.
Sandusky, who was convicted in 2012 on 45 counts related to child sexual abuse, is seeking a new trial through the PCRA, largely centered on the grounds that he received ineffective counsel before, during and after his trial
Sandusky’s attorneys had argued in June that Feudale had already waived judicial privilege when he allegedly testified to current grand jury judge Norman Krumenacker about alleged leaks from the grand jury that investigated Sandusky. They also said Feudale was not being asked to testify about deliberative processes protected by judicial privilege statutes, but rather factual matters, including that he appointed special prosecutors to investigate grand jury leaks during the Sandusky investigation, allegations that leaks existed and that he received correspondence outlining some of the alleged leaks.
Feudale would also be questioned on issues of bias and Sandusky’s claim that required information was withheld by the government, they wrote.
But Feudale’s attorney, Samuel Stretton, took issue with those arguments in a new answering brief and said Sandusky’s brief did not even address the issue of grand jury secrecy.
‘Clearly Judge Feudale is bound by grand jury secrecy and he would not be able to testify,’ Stretton wrote.
Stretton wrote that the suggestion that Feudale waived judicial privilege is ‘hard to understand.’
‘The fact he might have testified before the grand jury judge in a secret proceeding could not be construed as any such waiver,’ assuming there was such testimony.’
Judicial privilege also isn’t something that can be invoked or waived by individual judges, Stretton stated, but rather applies to the judicial institution. Citing cases in various jurisdictions, Stretton wrote that a judge cannot be compelled to testify about decisions made by the judge in court even if he is willing to do so.
‘[J]udicial privilege… should not be waived and perhaps cannot be waived by the individual judge since it is an institutional privilege,’ Stretton wrote. ‘The judicial privilege should result in the quashing of the subpoena.’
He added that the inability for Feudale to testify without violating grand jury secrecy forms the second basis for quashing the subpoena.
Feudale was removed as grand jury judge in 2013 after the state Supreme Court concurred with Attorney General Kathleen Kane that Feudale had demonstrated he could not preside objectively over cases involving the attorney general’s office. In November 2016, Feudale’s title of senior judge was revoked because of emails with reporters and former deputy AG Frank Fina — who led the Sandusky prosecution — after he was removed from the grand jury.
Sandusky has hearings to develop his claims scheduled for Aug. 12, 22 and 23 before specially presiding Judge John Cleland in Centre County Court. The former Penn State football assistant coach and founder of the Second Mile charity for at-risk youth is serving a 30-60 year sentence in the State Correctional Institute at Greene while he seeks a new trial.
