An attorney representing convicted serial child molester Jerry Sandusky may not invoke the work-product doctrine to avoid complying with a protective order issued by the judge who presided over Sandusky's trial, which was put in place days after grand jury materials in the case were allegedly leaked to the media.
In an opinion filed Friday, a three-judge panel led by President Judge Correale F. Stevens rejected attorney Karl E. Rominger's position that the work-product doctrine applied to Commonwealth v.Sandusky. Even if it did, Stevens said Rominger had failed to show how the doctrine was violated by the order, adding, "We simply decline to develop this argument for attorney Rominger or otherwise become his advocate in this regard."
"Aside from baldly asserting the order would somehow force the defense attorneys to reveal 'names of experts, investigators, or other persons consulted,' he has failed to develop the argument further," Stevens also said in the opinion.
Reached for comment, Rominger said the problem with that reasoning was that he had argued the court should not have inquired about the material in the first place.
"They're saying, 'You tell us what the stuff is and we'll tell you if it hurts work product or not,'" Rominger said. "My initial position was I shouldn't have to reveal that to anybody in the first place."
But Stevens, who was recently confirmed to the state Supreme Court by the Pennsylvania Senate, reasoned that criminal rules of procedure on protective orders allow evidence challenged under the work-product doctrine to be reviewed in camera and, if protection is deemed appropriate, the evidence will be sealed and preserved.
And that's exactly what Sandusky's lead trial attorney, Joseph L. Amendola, did after Senior Judge John M. Cleland placed a protective order on the case, responding to state prosecutors' concerns that grand jury material had been leaked to the media.
Rominger, however, and separately from Sandusky's direct appeal to his judgment of sentence, appealed.
The protective order came hours after a police interview with Sandusky's adopted son, Matt Sandusky, was aired on NBC's Today show. Days before that, Matt Sandusky went public with accusations that Jerry Sandusky, his adopted father and former Penn State assistant football coach, had raped him.
It is unknown who leaked the police interview to NBC. But, following its airing, a telephone conference took place. The participants were Rominger, Amendola, state prosecutors and the presiding grand jury judge, Barry Feudale.
That hearing led to the protective order requiring Amendola and Rominger to not share any discovery materials prosecutors gave to them with anyone outside of the defense. In a preamble to the order, Cleland noted the parties agreed to some type of protective order that would prevent secret grand jury information from reaching the public while Sandusky and university officials remain under grand jury scrutiny.
However, the order also appeared to apply retroactively, mandating that within 10 days of its issuance, the attorneys would give the court an "inventory," in the form of sworn statements, of any material they had already delivered to those outside of the defense.
Cleland had asked the Superior Court to reject the appeal, saying his order was not a final, appealable one.
In Rominger's appeal, the Carlisle, Pa.-based attorney asserted the net effect of Cleland's order would be to "invade the province of attorney work product." Furthermore, by not applying it to state prosecutors, who asked the court for the order at the initial hearing, Rominger said Cleland had issued a "one-sided" order.
Responding to that argument, Stevens said that issue was not immediately appealable under the collateral order doctrine.
The unanimous panel agreed with Rominger that he had standing to raise his other two issues on collateral review, but nonetheless rejected his arguments on the merits. Rominger had also argued that Cleland misrepresented the record when he suggested that his order was being filed after all the parties consented.
But Stevens, joined by Judge Jack A. Panella and Senior Judge Robert E. Colville, said it was unnecessary to review that issue after having concluded Rominger was not entitled to relief on his work-product privilege claim. In other words, it didn't matter whether he had waived his claim by consenting to the order.
Sandusky's main appeal raises separate issues related to Sandusky's trial proceedings, namely the time he had to prepare and an issue pertaining to how the jury was charged. Cleland sentenced Sandusky to 30 to 60 years in prison after a Centre County jury convicted Sandusky on 45 of 48 counts of child sex abuse related to 10 victims.
Rominger noted the Superior Court did not appear to directly address his concern that the protective order applied retroactively, adding that he plans to either appeal the case to the Pennsylvania Supreme Court or seek en banc reconsideration. Rominger said the issue of how a protective order becomes an inquiry was "going to be one of those issues I don't see myself letting go."
"That's where I think they're missing the issue," he added. "I'm trying to defend the integrity of work product."
A spokesman for the Pennsylvania Office of the Attorney General declined to comment.
(Copies of the 24-page opinion in Commonwealth v. Sandusky, PICS No. 13-1593, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)