The Pennsylvania Office of the Attorney General said in a court filing this week that there is no evidence that the state leaked secret grand jury information during the investigation of Jerry Sandusky, and even if it had that it would not be grounds for dismissing charges.
Sandusky’s Post-Conviction Relief Act attorneys Al Lindsay and Andrew Salemme argued in a filing last week that the presentment issued by the grand jury in 2011 should be quashed, subsequent charges of child sexual abuse of eight victims dismissed and a new trial ordered on the charges of Victims 1 and 2 because ‘Mr. Sandusky’s right to an impartial grand jury proceeding was unquestionably prejudiced because the government,in violation of grand jury secrecy laws, provided information to the media.’
Sandusky, who was convicted in 2012 on 45 counts of child sexual abuse, is seeking a new trial on the grounds that he received ineffective counsel. One of his arguments is that his trial attorney, Joe Amendola, should have sought to have the grand jury presentment quashed.
But Deputy Attorney General Jennifer Peterson wrote in this week’s filing that there is no proof to support Sandusky’s claim that investigators leaked grand jury information to Harrisburg Patriot-News reporter Sara Ganim to find more potential victims.
Peterson said that a report on the Sandusky investigation by Special Deputy Attorney General Geoffrey Moulton noted that Ganim’s story on the grand jury investigation raised the prospect that there was a leak, but that there is no evidence that one had occurred.
Prosecutors from the 2012 trial testified at evidentiary hearings for Sandusky in August that they were concerned about grand jury information appearing in the press and set up an internal sting to determine if someone in the OAG’s office had been responsible. They said they did not catch anyone leaking information.
She also wrote that individuals who testified to the grand jury between 2009 and March 2011 were not sworn to secrecy and could have discussed their testimony. Peterson also denies Sandusky’s claim that investigators would not have been able to locate any other victims without leaking information to the press, stating that other victims had been identified prior to the story, while to more came forward after Sandusky had been charged.
If there was a leak, Peterson wrote, that alone does not entitle Sandusky to a new trial or dismissal of charges.
‘Sandusky is not claiming that prosecutors knowingly presented perjured testimony or false evidence, or that the prosecutors interfered with, or impeded a witness’ constitutional right to counsel or… to refuse to answer a question that he/she honestly believed might tend to incriminate him/her,’ Peterson said.
Because there was no violation of Sandusky’s constitutional rights if there was a leak, ‘the only remedy is a finding of contempt of court and imposition of punishment by the supervising judge of the grand jury. Sandusky cannot turn a violation of a court order into a personal benefit,’ Peterson wrote, citing the state’s Investigating Grand Jury Act.
‘To suggest that a criminal defendant is entitled to the extraordinary remedy of dismissal of charges simply because the media was informed about an active investigation into certain allegations of sexual abuse is absurd,’ she wrote.
Additionally, having the grand jury presentment quashed is not a means for post-conviction relief, Peterson argued, explaining that an investigating grand jury does not have the power to indict and that a presentment is a recommendation and the decision to file charges is at the prosecutor’s discretion
In response to another filing by Sandusky’s attorneys, Peterson disagreed with their interpretation of a ruling on whether a court can conduct an in camera review of the therapy notes of psychologists who treated victims. Lindsay and Salemme have argued that some of the victims only remembered abuse after repressed memory therapy, which is an issue of debate in the field of psychology. They argue these could have been false memories, and that a previous court ruling allowed a court to review mental therapy records.
Peterson noted that there are circumstances where confidentiality could be waived, but said that they do not apply to Sandusky’s case, and that the Superior Court panel decision cited by Sandusky improperly created a new rule of law.
Sandusky, a former Penn State football assistant and founder of The Second Mile charity for at-risk youth, is serving a 30-60 year sentence at the State Correctional Institute – Greene. After evidentiary hearings in August, Lindsay said he was optimistic that specially presiding Judge John Cleland would grant additional hearings to develop evidence for Sandusky’s appeal.
