Lawyers: In rushed trial, judge violated Sandusky's rights
By Brad Bumsted and Adam Smeltz
Published: Tuesday, Sept. 17, 2013, 3:39 p.m.
WILKES-BARRE — None of Jerry Sandusky's victims made prompt reports to authorities, waiting a combined 73 years to disclose their abuse, Sandusky's appeals lawyer Norris Gelman argued on Tuesday before the state Superior Court.
The convicted pedophile deserves a new trial because a Centre County court “abused its discretion” in denying requests for continuances and violated his constitutional rights, according to the defense team fighting Sandusky's June 2012 conviction.
Now, it's up to Superior Court Judges Jack A. Panella, Sallie Updyke Mundy and William H. Platt to determine if the former Penn State University assistant football coach should be tried again. They did not indicate at the appeals hearing when they might issue a ruling.
“I'd be shocked if they reverse the conviction because the evidence presented was so overwhelming,” said Donna McClelland, a former assistant district attorney and deputy attorney general now with the Downtown-based McClelland Law Group. “I would be very surprised.”
A Centre County jury convicted Sandusky on 45 abuse counts. State prosecutors said he abused 10 boys, often in and around university facilities or his suburban State College home.
Sandusky, 69, is serving a 30- to 60-year prison sentence in Greene County and did not attend the hearing.
Judge John Cleland, who sentenced Sandusky, declared him a sexually violent predator.
But Sandusky's attorneys said they did not have enough time to pore through 12,000 pages of material prosecutors provided them before trial. The defense was “flying blind,” Gelman said.
Duke George, a New Kensington defense attorney following the case, said Sandusky's lawyers made a good argument on that front. He pointed to the related cases of three former Penn State administrators charged with covering up concerns about Sandusky for years.
“Their cases weren't anywhere near as severe as the case against Sandusky, and they still haven't gone to trial yet,” George said.
State prosecutors countered that Sandusky's attorneys had seven months to prepare for trial from the time investigators charged him in November 2011. A grand jury investigation of Sandusky became public knowledge in 2008, they noted.
The court will likely resist any notion that a case has a constitutional right to a particular timeframe, said Bucks County attorney Marci Hamilton, who represents two men who allege abuse by Sandusky. She said the claim of inadequate preparation time — if upheld — “would open the door for challenges in case after case.”
“This argument introduces such a slippery slope that I would be surprised if the courts embrace it,” Hamilton said.
She said other parts of Sandusky's appeal are more typical arguments, such as a claim that the jury received inadequate instructions.
To the defense point that the victims did not report quickly to authorities, state prosecutor James Barker said abused children don't simply run home to tell their parents. He argued Sandusky lured boys into his basement for abuse “over and over and over again,” describing the victims as credible witnesses in court.
“Experts in the field of child abuse know that these victims tend to keep it to themselves for very long periods of time. It's why people can get away with child abuse,” McClelland said.
Sandusky's lawyers claim a prosecutor inappropriately referred to Sandusky's failure to testify, according to court documents. They argue Cleland erred by telling jurors to weigh the testimony of Sandusky's character witnesses against other testimony.
Prosecutors disputed those arguments. They said the judge's instructions accurately reflected Pennsylvania law regarding character witnesses. Concerning the length of time for claims, prosecutors said jurors knew the defense would argue that abuse never happened and that some victims were angling for money.
The university settled with some victims who sued.
Trial prosecutor Joseph McGettigan told jurors they “only heard (Sandusky) on TV” — a reference to an interview Sandusky granted to NBC's Bob Costas in November 2011. That remark by McGettigan was not intended to refer to the fact that Sandusky didn't take the witness stand, prosecutors said.
In the TV interview, Sandusky acknowledged, “I enjoy young people” but proclaimed his innocence.
“I have done some of those things. I have horsed around with kids. I have showered after workouts. I have hugged them and I have touched their leg, without intent of sexual contact,” he told Costas.
Sandusky was prepared to testify but opted against it when he learned his adoptive son, Matt, 34, approached prosecutors several days into the trial and offered to testify for the prosecution.
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