After two weeks of deliberation following a hearing that brought Jerry Sandusky back to the Bellefonte courthouse for the first time in three years, Judge John Cleland has ruled on the various post-conviction discovery requests.
Attorneys for Sandusky made three general discovery requests — one related to Victim 2 and an allegedly false statement from the prosecutor at trial, a second related to financial incentives for victims to testify, and a third related to leaks from the investigative grand jury that prompted the charges against Sandusky.
The grand jury-related discovery request was denied by Cleland last week after attorney general Kathleen Kane was forced to testify under oath regarding a press release from her office, which Cleland misinterpreted to imply that Kane had information on grand jury leaks in the Sandusky case.
Kane clarified that misunderstanding, and Cleland essentially told Sandusky’s attorneys that they can’t use the post-conviction discovery process to try and uncover documents that they don’t even know exist. That includes a report from two special prosecutors appointed by then-presiding grand jury judge Barry Feudale to investigate the leaks. There is no reason to believe that report does or does not exist, and Cleland has directed Sandusky’s attorneys to take up that issue with current presiding grand jury judge Norman A. Krumenacker III.
In the case of Victim 2, Sandusky’s attorneys are alleging that the prosecutor lied during his closing arguments at trial when he said that he was not aware of the identity of that victim, who the prosecution alleged was seen being assaulted by Sandusky when Mike McQueary walked into the Lasch Building locker room, though McQueary’s story has changed over the years.
Sandusky’s attorneys wanted subpoena power to interview the man they believe is Victim 2 along with a number of investigators and the prosecutor, Joseph McGettigan. They believe that Sandusky’s trial counsel could be declared unfit for not objecting or asking for a mistrial following McGettigan’s statement.
Alexander Lindsay, Sandusky’s attorney, has argued that his client is allowed the right to discovery under a Pennsylvania rule that provides that power if there are “exceptional circumstances.” Cleland doesn’t think those circumstances exist, despite Lindsay’s argument that the high profile nature of the trial makes it exceptional.
“It is not the case that must be ‘exceptional.’ The term exceptional in this context does not refer to the nature of the case — its notoriety, publicity, or public interest,” Cleland said. “Instead, the rule refers to exceptional circumstances — which is a reference to some unique problem in the process of uncovering information that requires the aid of the court in the interests of justice.”
With that in mind, Cleland denied Sandusky’s counsel the right to subpoena power and similarly denied their request for all documents related to communications with Victim 2, which may or may not exist.
As for the alleged financial incentives for victims to testify at trial, Lindsay had a stronger argument because of the fact that some victims testified under oath that they had signed agreements with lawyers, although it wasn’t specifically stated that there were agreements related to settlement money. Even so, Lindsay isn’t burdened with proving that those documents exist.
While Cleland didn’t go so far as to direct all victims to turn over agreements with attorneys, he did direct the Commonwealth to turn over documents that show financial incentives for victims — if the commonwealth has them, that is.
“I will direct the Commonwealth, in accordance with the attached order, to disclose to me, under seal, whether it possesses or has under its control any documents demonstrating any victim who testified at trial had a financial incentive to testify falsely — including, for example, contingent fee contracts with attorneys, book contracts, and speaking fees — and to deliver to me copies of any such documents,” Cleland said.
Depending on the reply, Cleland said he would consider taking further action, including providing a copy of the documents to defense counsel or ordering further discovery.
