An attorney representing convicted child serial molester and former Penn State assistant football coach Jerry Sandusky told a judge Thursday that his client’s trial was “structurally” unsound because trial counsel didn’t have enough time to prepare for it.
But there wasn’t anything, specifically, attorney Joseph L. Amendola pointed to that prejudiced his client in the way of unreviewed discovery material, according to the defense attorney’s own testimony Thursday.
But attorney Norris E. Gelman, brought on to represent Sandusky on appeal, argued to presiding Judge John M. Cleland there was presumptive prejudice stemming from Amendola’s lack of time to prepare.
He noted the defense was not arguing ineffective assistance of counsel, which would require a finding of prejudice.
Cleland responded by questioning whether presumptive prejudice was a “legal fiction” and what role a presumption of prejudice would have in deciding Sandusky’s first round of post-sentence arguments.
That was one of a handful of arguments Gelman presented to a noticeably less packed courtroom in Bellefonte, Pa., where reporters and members of the public had packed the aisles during Sandusky’s nationally scrutinized trial in June.
No less packed was an October hearing, during which Cleland handed down a 30-to-60-year sentence that Sandusky — clad in a red jumpsuit Thursday — is now serving.
Gelman, who is now lead counsel for Sandusky in his quest for a new trial, also argued the court should have given the jury an instruction about how to assess the time gap between when Sandusky assaulted many of his victims and when those victims eventually reported the abuse to authorities.
Chief Deputy Attorney General Frank G. Fina responded that the jury was fully advised that Sandusky was attacking his accusers’ credibility by questioning how long they waited to come forward.
Fina said the issue was at the core of the defense and that lead prosecutor Joseph E. McGettigan alluded to it more than once in remarks to the jury, explaining to them why a sexual-abuse victim may not immediately come forward.
The trial was “replete with references” as to the reason for delay, Fina said.
During Gelman’s argument, Cleland questioned whether such a jury instruction would be misleading.
The instruction at issue, found in Suggested Standard Criminal Jury Instructions at 4.13(A), says evidence of a victim’s delay in making a complaint, while not rendering his or her testimony unreliable, may “remove from it the assurance of reliability” that would otherwise come with a prompt complaint.
Gelman said many of Sandusky’s accusers waited 10 years or more before coming forward.
The brief arguments followed an evidentiary hearing, the focus of which was the defense’s time to prepare.
With Amendola on the witness stand, Gelman questioned his colleague about the discovery timeline under which Amendola worked heading into Sandusky’s June 2012 trial.
Amendola came equipped with the raw numbers — “give or take a page or two,” he admitted — pointing to thousands of pages of discovery, discs with audio and video and computer files turned over by the Office of the Attorney General at the defense’s request.
In sum, according to Amendola’s records, there were more than 12,000 pages of discovery materials for the defense to review, some of which he still hasn’t “analyzed,” he said. And, between court hearings to prepare for and confidentiality limitations, he didn’t have a lot of time to do so.
Such was the focus of more than one pretrial motion for a continuance of trial, along with a last-ditch effort by Amendola and his trial co-counsel to withdraw as Sandusky’s lawyers, which the court denied.
McGettigan, in a somewhat heated cross-examination of his trial opponent, asked Amendola on Thursday if there was any discovery material he did not have time to review that would have ended up being valuable to him at trial.
Not without some pressing from the lead prosecutor, Amendola eventually admitted there was not.
Asked if there were any discovery requests that reflected mandatory, discretionary or exculpatory materials that were not turned over by the Attorney General’s Office, Amendola said “no.”
McGettigan noted there was also substantial discovery material that fell outside of those three categories, handed over by prosecutors at the defense team’s behest.
McGettigan also asked Amendola if he pursued his work diligently and how the counsel selected which discovery materials he would review with the trial looming.
Fina, arguing the Office of the Attorney General’s response to Sandusky’s post-sentence motions, would double back to that subject.
Pointing to the “ample record of Mr. Amendola’s performance,” Fina said Amendola was a competent and experienced defense attorney who mounted a professional defense effort for Sandusky.
“We all saw that; the record is clear,” Fina said. “As Mr. Amendola said today, he utilized everything he had.”
Other issues raised by the defense at the hearing were the court’s jury instruction telling jurors to weigh the character evidence presented by Sandusky against all other evidence and McGettigan’s apparent reference to Sandusky’s decision not to testify on his own behalf.
After the trial, it was revealed that Sandusky did not testify because he had been told prosecutors were prepared to call Matt Sandusky, Jerry Sandusky’s adopted son, to the witness stand, where Matt Sandusky would have testified about allegations that he too had been molested by the former assistant coach.
Jerry Sandusky is also taking issue with the court’s decision to admit the hearsay statement of a man who a Penn State janitor told that he saw Sandusky molest a young boy.
After some pretrial squabbling, the statement eventually got to the jury.
Cleland asked Gelman what would be the practical effect of vacating Sandusky’s convictions on those charges alone, related to an unidentified person known as Victim 8.
Mainly, would it affect his sentence or get him a new trial?
Gelman said it would not; he told the judge he included that issue because he believed he had to.
Cleland responded that Sandusky would rightfully not want to be found guilty of unsubstantiated charges, regardless of the fact that it would not change his time served.
Fina deferred to previous court filings on that issue.
Ben Present can be contacted at 215-557-2315 or email@example.com. Follow him on Twitter @BPresentTLI. •