Jerry Sandusky, the ex-Pennsylvania State University assistant football coach sentenced to at least 30 years in prison for abusing boys, deserves a second trial because his first was unfair, his lawyer argued today.
Sandusky’s trial attorneys were given inadequate time to prepare their case and the judge didn’t tell the jury to weigh whether the years that passed before the crimes were reported compromised the victims’ credibility, attorney Norris Gelman told the Superior Court of Pennsylvania.
“Sure they were children” when the assaults took place, Gelman said of the victims, now in their 20s, during the hearing today in Wilkes-Barre, Pennsylvania. “They left childhood a long time ago and these were rough and tumble kids. Their eyes were open.”
Sandusky, 69, who is being held in restricted housing at a maximum security prison in Waynesburg, Pennsylvania, wasn’t allowed to attend today’s proceedings.
Sandusky is prepared to take his appeal to the state’s highest court if three-judge-panel rules against him, Gelman said yesterday in a phone interview. The court didn’t indicate today when it would rule in the case.
James Barker, an attorney for the state, told the appeals court the case was handled properly with sufficient time given to the defense to prepare.
“In order to conclude that Jerry Sandusky is entitled to a new trial one would have to misread this record and misread the law,” Barker told the panel. “They had enough time to prepare, they chose to use it in an unwise fashion.”
Not Enough Time
Attorneys representing Sandusky at trial said last year that they had less than 4 1/2 months to prepare a case based on 52 criminal counts and 10 separate victims.
Former lead attorney Joseph Amendola went into trial “blind” with regard to the contents of more than 12,000 pages of documents turned over in pre-trial proceedings, Gelman said.
Prosecutors also gained an advantage when they were allowed to comment on Sandusky’s silence at court, saying the former coach conducted television interviews but refused to answer questions under oath, Gelman said.
Prosecutors portrayed Sandusky to the jury as a serial child molester who used the Second Mile, a charity he founded for needy boys, to recruit his victims by befriending them and “grooming” them for abuse with gifts, trips to Penn State football games and money.
The abuse took place in buildings on Penn State’s campus and at Sandusky’s home. Sandusky spent more than 30 years at the school before retiring in 1999. He was found guilty by a jury in June 2012 of 45 counts of abusing boys over a 15-year period.
At his sentencing on Oct. 9, 2012, Sandusky blamed his victims, attorneys and the media for making him out to be a “monster,” who “did disgusting things.”
Among the issues raised on appeal is Common Pleas Court Judge John Cleland’s alleged error in denying three requests to delay the trial and prosecutors’ alleged misconduct for adversely commenting on Sandusky’s refusal to testify in his own defense at trial. Cleland, who oversaw Sandusky’s trial and sentenced him, rejected those arguments in a January ruling.
“Adverse comment on the accused not testifying is a double-edge sword,” Gelman wrote in papers filed in preparation for the hearing. “It fortifies the prosecution’s case, and adverse comment on the silence of the accused at trial undermines the defense offered.”
Prosecutors countered in papers last month that their comments were related to the TV interview, not Sandusky’s failure to testify. They urged the appeals panel to also reject Sandusky’s other claims.
“Sandusky never identified any evidence that would have affected the outcome of trial in any way and so cannot claim to have been prejudiced,” according to the filing.
Gelman, a former Philadelphia prosecutor, is known for defending Ira Einhorn, dubbed the “unicorn killer,” when the counterculture leader was tried in absentia in 1993 for the 1977 murder of his girlfriend, Holly Maddux. Gelman spent four years fighting Einhorn’s extradition from France following his arrest in 1997 after 16 years on the run. Einhorn was returned to Philadelphia in 2001, retried, convicted and given a life sentence.
The Sandusky scandal led to the firings of university President Graham Spanier and legendary football coach Joe Paterno, who died in January 2012. Spanier and two other school officials face related criminal charges.
Last month, the school agreed to settle claims brought by Sandusky victims for an undisclosed amount. It has spent almost $50 million on the scandal, including the first of five installments toward a $60 million fine imposed by the National Collegiate Athletic Association for its handling of abuse allegations.
The appeals case is Commonwealth of Pennsylvania v. Gerald Sandusky, 343 MDA 2013, Superior Court of Pennsylvania Middle District (Harrisburg).