Lurching Toward Trial In The Sandusky Case

Editor's Note: Here is another excerpt from Mark Pendergrast’s forthcoming book, The Most Hated Man in America: Jerry Sandusky and the Rush to Judgment. (Sunbury Press, paperback, $19.95, release date, Nov. 6, 2017; ISBN: 978-1-62006-765-9). The author is allowing it to be posted now to explain why people should sign the new Change.org petition to grant Sandusky a new trial. Please sign this petition ASAP, the author writes, and it's also important that you add a comment.

"This section, ‘Lurching Towards Trial,’ just gives you the flavor of how incredibly rushed the trial was, and how unprepared the defense lawyers were," Pendergrast wrote Big Trial. "The jury selection process was appalling, with several jurors indicating that they had already concluded that Sandusky was guilty. They were selected as jurors anyway. Defense attorney Joe Amendola gave the worst opening statement I’ve ever encountered, saying that the Commonwealth had ‘overwhelming evidence’ against Sandusky, when in fact there was no physical evidence at all, the victims’ stories were problematical in many ways, and the defense attorneys were utterly ineffective.  It’s a complex story, but the bottom line is that, at the least, it is abundantly clear that Sandusky deserves a new trial.”

 

 By Mark Pendergrast

for BigTrial.net

 

Joe Amendola and Karl Rominger, the attorneys for Jerry Sandusky, faced a virtually insurmountable task in preparing for the trial, which Judge John Cleland was clearly intent on holding as soon as possible.  Cleland was perhaps sensitive to media criticism questioning why it had taken three years from the time Aaron Fisher, “Victim 1,” first made allegations, to the time of Sandusky’s arrest.[1]  

The reason: it took those three years for the prosecutors to grow memories, find other alleged victims, and convince the Grand Jury and Office of the Attorney General that there was sufficient evidence to recommend an indictment, but in the hysteria over the case, no one acknowledged that reality.

Judge Cleland initially set the court date for May 14, 2012.[2]  Then, in response to Amendola’s increasingly anguished complaints that he had not even received the transcripts of the Grand Jury testimony, Cleland delayed the trial by a mere three weeks, until June 5.[3]  Astonishingly, Pennsylvania law specified that prosecutors didn’t have to hand over testimony given during secret grand jury proceedings until each witness testified at trial.[4]  The Grand Jury had essentially amounted to a kangaroo court.  Not only was Amendola not allowed to cross-examine witnesses there, he was not even allowed to be present.  Judge Barry Feudale, presiding judge of the 30^th grand juries, ruled that the Sandusky defense team could have access to the grand jury transcripts only ten days before the first witness was scheduled to testify.

Amendola and Rominger had to speed-read through the thousands of pages of discovery material that they did get.  For a while, they couldn’t even get the prosecution to give them the names and birthdates of the alleged victims, along with the exact dates on which they were supposed to have been abused by Sandusky.  Amendola also wanted the names of anyone who had come forward to claim abuse but who "did not fit the commonwealth's profile and/or the report was deemed to be false,” but that was not forthcoming, either.  

Neither was information on whatever the prosecution had discovered on Sandusky’s computer, probably because they had found nothing incriminating whatsoever – no child pornography, which was surprising if Sandusky was the compulsive pedophile he was supposed to be.·[5] 

“We’re really being pushed to kind of decipher this stuff,” Amendola said in February 2012 about the reams of material.  “We’ll be prepared to try the case whenever the judge says, but we’re playing a lot of catch-up right now.”[6]

Amendola kept complaining.  He threatened to file a motion to dismiss the case, since it was very difficult to prepare a defense without exact times and dates of alleged offenses.  

“All we are asking is [for prosecutors] to go back to these accusers and say, ‘You went to football games — which ones?’  Give us at least something that we could check,” Amendola begged.

Prosecuting attorney Joe McGettigan responded that “many of the alleged victims were abused several times a week, or month,” so it wasn’t possible to pin down a particular time.  Besides, “They didn’t want to remember what happened and were even encouraged by Sandusky to forget,” he said. 

Here was another red flag that the alleged victims may have been in therapy searching for repressed memories, but no one picked up on it.  When the prosecutors said they wouldn’t provide the information, Judge Cleland commented, "I think the answer is they can't."  

He thus declared that it was “futile” to demand such details.  According to reporter Sara Ganim, “the state Attorney General's Office countered that Sandusky is accused of abusing boys who are now men, who were pressured into forgetting what happened and many times abused weekly for many years.”[7]

Despite Amendola’s strenuous objections and repeated requests for a continuance, Cleland denied the requests and stuck to his promised June 5 trial date, which would take place in Centre County, where State College and Penn State were located.  Incredibly, Jerry Sandusky had instructed Amendola to oppose a change in venue, assuming that his local reputation would benefit him.[8]  Instead, the last place on earth that he was likely to get a fair trial was in Penn State territory, where the case had received a huge amount of horrendous publicity, and Penn State fans were bitter and angry at the impact on Coach Paterno and their beloved institution.

On May 30, in a private unscheduled meeting with the judge and prosecutors, Amendola pled for a delay of the trial to allow him time to prepare for it properly.  He wanted to call a psychologist as an expert witness, but the psychologist had been unable to prepare his reports because he hasn't been given access to the grand jury testimony.  His jury consultant was in Puerto Rico on vacation.  One of Amendola’s investigators was having surgery.  Amendola and Rominger didn’t have enough time to review all the evidence.  They couldn’t call Gary Schultz or Tim Curley because they had exercised their fifth-amendment rights. Cleland again denied the requested continuance, saying "No trial date is ever perfect, but some days are better than others."[9]

Later that same day, in an official pre-trial hearing, Amendola asked Cleland to throw out three of the ten alleged victims before the trial.  Victim 2, the unnamed Allan Myers, should be thrown out because Mike McQueary’s version of the shower incident kept changing, including the date on which it was supposed to have occurred.  

Victim 8, the phantom victim supposedly witnessed by the janitor who now had dementia, should be thrown out because it was pure hearsay.  And Victim 6, Zachary Konstas, should be thrown out because the district attorney had decided in 1998 that there wasn’t enough evidence to prosecute, so to try it again amounted to a kind of double jeopardy.  Cleland denied all of Amendola’s requests.  All ten alleged victims would be presented to the jury.[10]

On June 5, just before the process of picking a jury commenced, Amendola tried one more tactic.  He filed a motion to withdraw as Sandusky’s lawyer, “based on the lack of preparation of all the things that are going on, most notably the absence of our experts and jury consultant.”  A “key witness” was unavailable.  “My office is still copying materials which we cannot send out to anybody because they’re all confidential.  They’re all grand jury materials.  My staff is ready to quit.” 

He said that “some day when people talk to my staff and get a real flavor for what was going on in my office for the past 30, 60 days, they’ll have a better understanding that this is not lawyering.”  The reality was that “we have been so far behind, just keeping up with the discovery materials and trying to do due diligence… but we’re at a loss.”  They hadn’t even had time to serve subpoenas to potential witnesses.  He concluded that “we’re not prepared to go to trial at this time.”

Co-counsel Karl Rominger added that he had called the Pennsylvania Bar Ethics Hotline the day before, and they had called his attention to Rule 17.1, a lawyer’s “duty of competency,” and that Rule 1.16 called upon a judge to ask lawyers to withdraw if the judge could tell that they were completely unprepared.  The lawyer who answered the hotline said that they would normally render a formal opinion in such cases, but since they knew it was the Sandusky case, they didn’t want to get involved.

Amendola said that he was “fully cognizant of the fact that the Court will deny but at least there will be a record.”[11]  And he was right.  Cleland refused to allow him to withdraw from the case, and jury selection began. 

· Although there was no pornography on Sandusky’s computer, his investigators were sending “graphic and raunchy” pornography by email to one another, though the Office of the Attorney General has refused to make the emails public.

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[1] Ganim, “Inside the Jerry Sandusky Investigation: Why Did It Take So Long?”

[2] “Judge Sets May Trial Date.”

[3] Ganim, “Jerry Sandusky Requests”; “Start of Sandusky Trial Delayed.”

[4] Ganim, “Jerry Sandusky Requests.”

[5] Thompson, “Court Bars Release of Sexually Explicit Emails.”

[6] Ganim, “Jerry Sandusky’s Next Court Date”; Ganim, “Jerry Sandusky's attorney says prosecutors didn't share all evidence”; Ganim, “Jerry Sandusky's lawyer wants info from his client's computer.”

[7] Ganim, “Judge in Jerry Sandusky case won't order prosecutors to give more details”; Ganim, “Jerry Sandusky's lawyer asks for more details”; Ganim, “Jerry Sandusky's lawyer threatens.”

[8] Trial Transcript, Jury Selection, Day 1, p. 132-133.

[9] Ganim, “Private Meeting.”

[10] Ganim, “Judge in Jerry Sandusky case to rule.”

[11] Trial Transcript, “Motion to Withdraw,” June 5, 2012.