Jerry Sandusky, a former Penn State assistant football coach, was convicted last year on 45 counts relating to sexually abusing 10 children.  He was sentenced to 30 to 60 years in prison.  The investigation and trial of Jerry Sandusky set off a media firestorm and exposed an alleged Penn State scandal.  Three other Penn State officials face charges for allegedly covering up for Sandusky, former VP Gary Schultz, former President Graham Spanier, and former athletic director Tim Curley.  They are charged with perjury, obstruction, endangering the welfare of children, failure to report suspected abuse, and conspiracy.  Penn State faces several lawsuits and NCAA sanctions, which are currently being appealed and amended.  A charity where Jerry Sandusky volunteered, Second Mile, which helped disadvantaged children, was dismantled and all its assets dispersed.  Joe Paterno, the famous long-time Penn State coach, has had his reputation tarnished by media reports of his alleged involvement.  He has not been charged, but has since died.  His family continues to fight to clear his name.  Now, Jerry Sandusky’s second appeal has been denied. 

Sandusky had argued in his appeal that his lawyers were not given enough time to properly prepare for trial, the prosecutor had improperly referenced Sandusky’s decision not to testify, and the judge did not instruct the jury correctly.  In its 19-page ruling, the Pennsylvania Superior Court ruled that the trial court had properly instructed the jury.

Sandusky’s lawyer, Norris Gelman, said he would ask the Pennsylvania Supreme Court to review it freshly because the Superior Court didn’t find that Judge Cleland, the trial judge, handled the case completely without flaw.  Wednesday’s decision came two weeks after oral arguments.  The opinion authored by Judge Jack Panella said trial judges have discretion about pretrial delays and that Judge John Cleland had properly considered all continuance requests he denied.  The Superior Court also wrote that denying continuance is not a “structural defect” (a specific constitutional error, such as denial of counsel), as Sandusky’s lawyers argued.

“…[not] every restriction on counsel’s time or opportunity to investigate or to consult…or otherwise to prepare for trial violates a defendant’s Sixth Amendment right…a trial court exceeds its constitutional authority only when…its discretion to deny…on the basis of…insistence upon expeditiousness in the face of a justifiable request…,” Panella wrote.

The judges concluded that a trial judge requires a “great deal” of latitude when scheduling trials because of logistical concerns, such as assembling witnesses, seating jurors, burdening counsel, defendant’s rights, etc.  In Sandusky’s trial, there were only 6 months of discovery before trial began.

The trial court had ruled when denying requests for continuance, “…the defense team is assuredly capable, even as the trial is ongoing…to determine what is useful to the defense…June 5th does present its problems, on balance and considering all the interests involved – the defendant’s right to a fair trial, the alleged victims’ right their day in court, the Commonwealth’s obligation to prosecute promptly, and the public’s expectation that justice will be timely…no date…present[s] a better alternative.”

The Superior Court ruled that even if this were an error, it would be a “harmless error”, meaning it did not undermine the verdict or cases from either side and no prejudice resulted.  Additionally, Joe Amendola testified at a post-sentencing hearing that there were no newly discovered items within the discovery that would have altered their questioning or presentation at trial.  The defense had also wanted the judge to give the jury an instruction on the amount of time it took for all the victims to report their allegations.  Cleland denied this request ruling:

“The practical reality is that the standard prompt complaint charge does not take into account the complex…factors that might cause a child victim to delay in reporting…or in comprehending the long-term significance of the assault, or…a child’s motivation to protect the person who assaulted them.  No one who has had the slightest experience with child sexual abuse or given a white of thought…could conclude that failure to make a prompt complaint…is an accurate indicia of fabrication.”

“The research is such that in cases involving sexual abuse, delayed reporting is not unusual, therefore, is not an accurate indicia of honesty…”

Panella wrote of that argument, Cleland should have evaluated the need of this jury instruction based upon age and maturity of each victim, but that not doing so was not prejudicial or harmful to the defendant or verdict.  The instruction would have permitted the jury to call into question a victim’s credibility based upon the fact that they did not reveal their sexual assault at the “first available opportunity.”  The Superior Court disagreed with the analysis of the instruction by the trial judge, but under different reasoning upheld his decision to give the jury a standard credibility instruction:

“The trial court specifically instructed the jury that they were to consider any possible motives of the victims in coming forward,” Panella wrote. “The vigorous cross-examination of the victims and arguments by defense counsel, when combined with the trial court’s instructions on credibility, clearly defined the issues for the jury.”

Panella and the other judges didn’t expressly address the improper reference by the prosecution; instead they wrote that it was not properly preserved for appeal.

The prosecutor said, “The defendant, he had wonderful opportunities to speak out and make his case.  He did it in public.  He spoke with Bob Costas….what was his explanation?  You have to ask him…He didn’t say he knew why he did it…He just said he saw you do it…you would have to ask them.  That’s an answer?  Mr. Amendola did I guess as good a job as possible…his client has a tendency to repeat questions [when] asked…I would think that the automatic response when someone asks you if you’re…a pedophile…would be, you’re crazy, no…Instead of…let me think about that…that’s Mr. Amendola’s explanation that he automatically repeats questions.  I wouldn’t know.  I only heard him on TV.  Only heard him on TV…”

According to case law, if a defense does not request a remedy like a mistrial or instruction to the jury, they waive the appellate basis of their objection.  In this case, Sandusky’s attorneys objected and the judge ruled it was “fair rebuttal” and that he would instruct the jury about there being no obligation for a defendant to testify or present evidence, as he had “cautioned the jury again and again…[and would] caution the jury again…”  The defense then thanked the judge, effectively waiving their appeal on that issue, according to the appellate court.

“Sandusky did not move for a mistrial or request a[n]…instruction; he merely…object[ed].  As such, this claim is not preserved for appellate review.”

The judges also turned down the other jury instruction claim related to weighing a defendant’s character against the allegations.  The trial court read an instruction about a defendant’s reputation:

“…The defense has offered evidence tending to prove that the defendant is of good character…[a] law abiding, peaceable, nonviolent individual.  The law recognizes that a person of good character is not likely to commit a crime, which is contrary to [their] nature.  Evidence of good character may by itself raise a reasonable doubt of guilty and require a verdict of not guilty.  So you must weigh and consider the evidence…along with the other evidence…in making that determination [i.e. of innocence or guilt], you may consider evidence of good character which you believe to be true.”

The defense argued in the motion that the instruction was contradictory.  First the judge instructs the jury to consider the evidence of good character in and of itself (“Evidence of good character may by itself raise a reasonable doubt…”) and then says to weigh the evidence against the other evidence.  The Superior Court ruled that “evidence of good character is always admissible for the defendant” and “it is to be weighed and considered in connection with all the other evidence…”

They said, “…The charge instructs the jury that evidence of good character may by itself raise a reasonable doubt and require a verdict of not guilty…then instructs the jury that it must weigh and consider all the other evidence, but it can…still reach a verdict on character evidence alone.”

Sandusky, 69, is likely to die in prison if his appeals are all denied.

  1. Lon Spector says:

    Denial is NOT a river in Egypt. Creatures like Sandusky CAN be stopped, but only if they are observed with open eyes. The Mississippi river analogy applies here. The Mississippi river begins in the mountains of Montana as a tiny tributary. It can be walked across with a single bound. The further you go down the river, the wider it gets, until you have a raging torrent. Problems have to be solved, when they are still at a manageable stage. That way, you don’t have Sanduskies , or innocent people rotting away in jail cells.


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