McKean County Senior Judge John Cleland, who has been specially presiding over the Jerry Sandusky case since 2011, recused himself Friday from further proceedings in Sandusky’s appeal and suggested disciplinary action against Sandusky’s attorneys.
Cleland wrote in a filing that Sandusky attorneys Al Lindsay and Andrew Salemme have ‘impugned the competence and integrity of essentially everyone associated with the grand jury’s investigation into the defendant’s conduct, the defendant’s trial and conviction and these post-conviction proceedings. Now they have chosen to impugn the integrity of the court itself.’
He called the accusations against attorneys, judges, jurors, investigators and victims ‘a form of advocacy that transcends the bounds of an honored profession,’ that should be reviewed by the Disciplinary Board.
Sandusky was convicted in June 2012 on 45 counts of child sexual abuse and sentenced to 30-60 years in state prison. Cleland presided over that trial and has continued to do so during Sandusky’s current appeal under the Post-Conviction Relief Act.
Lindsay and Salemme have argued that Sandusky received ineffective counsel from attorney Joe Amendola before, during and after his trial. Among their arguments is that Amendola failed Sandusky by waiving his preliminary hearing which could have been used for discovery and to cross-examine witnesses.
They filed a motion in May for Cleland to remove himself from further proceedings because he was present at a December 2011 meeting at the State College Hilton Garden Inn when Amendola reached an agreement with prosecutors for Sandusky to waive his preliminary hearing. Cleland denied that motion, stating that he was only present at the meeting to address any administrative issues that might arise. He said the meeting was conducted by Magisterial Senior Judge Robert E. Scott, who was appointed to specially preside over the preliminary hearing.
Cleland noted that Sandusky’s initial request for recusal did not suggest he or Scott had participated in the negotiations or that his attendance was unethical.
In a later brief regarding the preliminary hearing issue, Sandusky’s attorneys suggested Cleland violated judicial rules of conduct, claiming he participated in negotiations during an off-the-record meeting.
‘Instead of asking me to revisit my recusal order and thereby obtain my testimony, they elected to rest on a clearly misleading record,’ Cleland wrote.
Earlier this week Cleland entered an order for Lindsay and Salemme to notify him of their intent to call him as a material witness or formally withdraw the argument. The attorneys responded that they would do neither.
Cleland wrote that during evidentiary hearings this summer, Amendola and prosecutors from the 2012 trial all testified that they had reached an agreement for Sandusky to waive the hearing and in exchange the prosecution would not seek additional bail if more charges were filed. Lindsay did not ask any of them if Cleland participated in any negotiations.
‘Counsel has argued not only that the meeting between the lawyers and Judge Scott and me was unethical, but has also cast it in tones that would lead one to believe it was somehow sinister,’ Cleland stated.
Had he been notified that Sandusky’s attorneys intended to argue his presence was unethical and they believed his testimony was warranted to address a factual dispute, Cleland said he would have revisited the recusal issue and agreed his testimony was relevant.
‘Instead PCRA counsel have elected to call into question my fairness and impartiality without requesting my testimony, and by doing so have created a cloud over these proceedings. It would be imprudent to allow such a cloud to linger and to permit it to cast a shadow on the legitimacy of the court, or any decision I would make on the merits of the defendant’s PCRA petition, especially when that cloud can be so easily dissipated by my voluntary recusal and by presenting my testimony before a judge appointed in my stead.’
In a footnote, Cleland wrote that in studying the 34 issues raised by Sandusky and applicable laws, none merit relief.
Now that will be for another judge to decide.
