It was a short court hearing that mostly involved complicated legal arguments over discovery requests, but judge John Cleland broke the monotony with a surprising court order directed at the attorney general.
In response to a press release from Kathleen Kane yesterday, in which she accused judge Barry Feudale of purposefully leaking sealed documents, Cleland ordered Kane to disclose under seal any evidence that Feudale leaked documents related to Jerry Sandusky.
Feudale is the judge who presided over the state investigative grand jury that prompted Jerry Sandusky’s child sexual abuse charges.
“The attorney general is directed to disclose to counsel for the defendant and to the court, under seal, any information of which she is aware to support her conclusion, as contained in her publicly issues statement … that Judge Feudale and/or prosecutors of the Office of the Attorney General in any way orchestrated, facilitated, cooperated in, or arranged for disclosure of otherwise secret grand jury material in this case,” Cleland wrote. “She shall detail who was involved, what was discovered, when, and how it was disclosed.”
The order comes with a deadline of Wednesday, Nov. 4 at 10 a.m. A spokesperson from the attorney general’s office offered no statement, but said that they will comply with the order.
Sandusky attorney Alexander Lindsay addressed the media after the hearing, expressing his surprise (and thankfulness) for Cleland’s order. Lindsay said that if it becomes apparent that grand jury documents related to Sandusky’s case were leaked, all charges against him should be dismissed and Sandusky should be a “free man.”
The remainder of the hearing included arguments over the various discovery requests Sandusky has made regarding his attempted appeal. Judge Cleland explained to Lindsay, who has asked for a subpoena power to interview witnesses that could be helpful in the appeal, that he doesn’t believe he has the power to grant that authority.
“Where in the rules or statutes is it afforded for me to give you subpoena power?” Cleland asked. “I want to know where I have the authority to provide you subpoena power.”
Lindsay’s argument was essentially that it isn’t explicitly granted to Cleland in Pennsylvania law, but it also isn’t explicitly banned either. Lindsay said that subpoena power is “inherent with discovery … and the law does not specify the scope of discovery.”
On the subject of supposed attorney fee agreements, which Lindsay believes would prove financial incentives for witnesses to testify against Sandusky if they exist, Cleland seemed to side with the commonwealth’s opinion that he can’t subpoena those documents from private attorneys, especially when he isn’t sure if they exist.
“What we feel is essential is what these young men signed. They all said they signed something. They said they didn’t know what it was. They said they didn’t pay any fees,” Lindsay said. “…I wasn’t born yesterday. These lawyers were signed up to get these boys recoveries from Penn State.”
The legal argument is that Sandusky’s trial attorneys failed to effectively defend their client by not subpoenaing these documents at the time of the trial.
“These lawyers were there to get them money. They had a financial interest in the outcome of the case,” Lindsay said. “…Defense counsel was ineffective for not subpoenaing these.”
But when it comes to the fee agreements and Sandusky’s request for documents related to a report on grand jury leaks that might not even exist, Cleland wasn’t sold on the defense’s argument.
“It’s one thing to say ‘I want discovery to get documents I know exist.’ It’s another thing to say ‘I want discovery to find out whether documents exist.’ One is permissible and the other isn’t permissible and Pennsylvania case law is very clear about that,” Cleland said.
The third discovery request is related to Victim #2, who Sandusky was allegedly seen having sexual intercourse with by football graduate assistant Mike McQueary in the locker room shower. McQueary’s story has changed over the years on multiple occasions, and Sandusky’s attorneys want to subpoena the victim, who they say could contradict McQueary’s testimony.
“[He] is crucial because he is the witness who can contradict Mr. McQueary’s testimony,” Lindsay said. “We like to say Mr. McQueary’s testimony is a Christmas tree from which all of these ornaments are hung.”
A number of notable faces were in the Bellefonte courtroom on Thursday morning, including former Penn State football coach Dick Anderson, Dottie Sandusky, and a group of supporters led by John Ziegler wearing “Justice for Jerry” pins.
The burden is now on Cleland to rule on the various discovery requests, which likely won’t occur until after Kane complies with the order related to judge Feudale’s alleged leaks.
