The judge who presided at convicted serial child molester Jerry Sandusky’s trial has rejected all of his post-sentence motions, ruling the former Penn State assistant football coach was not prejudiced by the amount of time he had to prepare for trial and that the court properly charged the jury.
In denying Sandusky’s request for a new trial, Senior Judge John M. Cleland rejected seven defense arguments in total, setting the stage for an expected appeal to the state Superior Court.
Sandusky’s appellate attorney, Norris E. Gelman, characterized his chances on appeal as the same “long three-pointer” he told reporters Sandusky was facing after a hearing on the post-sentence motions earlier this month.
At that hearing, Gelman argued the ex-coach’s trial, which led to convictions on 45 of 48 counts of child sex abuse, proceeded under a “structural defect” because trial counsel, Joseph L. Amendola, claimed he did not have enough time to review thousands of pages of discovery material provided to the defense by prosecutors and other sources. This came despite Amendola’s own sworn admission that, after reviewing much of the material after trial, he did not identify a piece of evidence that would have changed his trial strategy.
“As both a matter of fact and of law, I do not think it can be said that either of the defendant’s trial counsel failed to test the prosecution’s case in a meaningful manner,” Cleland said in a 27-page opinion Wednesday. “The defendant’s attorneys subjected the commonwealth’s witnesses to meaningful and effective cross-examination, presented evidence for the defense, and presented both a comprehensive opening statement and a clearly developed closing argument.”
“This is simply not a case where trial counsel’s inability to review before trial all the discovery material produced can be said to have resulted in a ‘structural defect’ that made the lack of a fair trial a virtual certainty.”
Sandusky is also appealing his sentence based on Cleland’s decision not to charge the jury that, if a sex-abuse victim fails to make a prompt complaint about the defendant’s sexual assault, such could be considered in evaluating their credibility.
Cleland affirmed his decision to not give the relevant jury instruction, evaluating it as not necessarily helpful to the jury and possibly even misleading considering the facts of the case and arguments of counsel.
“The practical reality is that the standard prompt complaint charge does not take into account the complex and myriad factors that might cause a child victim to delay in reporting an assault, or in comprehending the long-term significance of the assault, or even a child’s motivation to protect the person who assaulted them,” Cleland said.
During Sandusky’s trial, eight victims testified against the embattled former defensive coordinator, with allegations ranging from one instance of abuse to dozens of assaults over the course of years. Sandusky’s charity, The Second Mile, became a thread as prosecutors built their case against Sandusky, alleging he used the camp for troubled youths to meet and groom his victims.
The defense took the position that Sandusky’s accusers conspired against the ex-coach despite his good will to earn windfall judgments against The Second Mile and Penn State University, both of which now appear at the defense end of civil claims stemming from the scandal.
Amendola, during cross-examination of Sandusky’s accusers, routinely asked the young men, most of whom are in their 20s, why they would wait to report the assault to authorities.
Nerves, ignorance and embarrassment, along with the perks of attending Penn State football games and interacting with the players, were common responses.
In Cleland’s view, the jury had a full picture after watching the testimony and hearing the defense theory again as a “major theme” of Amendola’s closing argument.
In his opinion, Cleland noted he elected the standard credibility charge over the prompt complaint charge.
Cleland also declined to throw out Sandusky’s conviction related to a person known as Victim 8, who a Penn State janitor witnessed Sandusky molest in 2000, according to the testimony of one of the janitor’s colleagues. The victim has not been identified and the janitor, James Calhoun, was incapable to testify because he has dementia, prompting the defense to try to block the hearsay testimony of Calhoun’s colleague, Ronald Petrosky.
Cleland ruled Wednesday that even if his evidentiary ruling allowing Petrosky’s testimony under the excited utterance hearsay exception is found to be incorrect, it would have no “practical bearing” on the outcome of the case or the sentence Cleland imposed — 30 to 60 years in state prison.
Cleland noted that he specifically ordered the sentence for the counts related to Victim 8 to run concurrently so that, in the event the jury’s convictions were set aside on appeal, a remand for resentencing would not be required.
The defense also took issue with the court’s jury instruction in that Cleland told the jury good character evidence could itself raise a reasonable doubt of guilt, but then immediately followed that comment with the instruction to weigh all of the evidence in the case, an argument Cleland dismissed.
In its fifth issue raised in post-sentence motions, the defense claimed lead prosecutor Joseph E. McGettigan made an adverse reference to Sandusky’s decision not to take the stand at his trial when McGettigan said Sandusky “had wonderful opportunities to speak out and make his case.” McGettigan, in his closing argument, then referred to the interview Sandusky did with NBC’s Bob Costas shortly after Sandusky was first arrested in 2011. The televised interview is widely remembered for an uncomfortable pause from Sandusky after Costas asked him if he was sexually attracted to young boys.
According to Cleland, Amendola objected to McGettigan’s remark as “‘commenting on the silence,’” but Cleland pointed to his multiple statements to the jury that Sandusky had no obligation to present evidence or testify on his own behalf.
A lack of specificity argument from the defense failed, as well.
Reached for comment, Gelman said he viewed his best issue as the court’s failure to give the jury instruction on the complainants’ failure to make prompt report.
A spokesperson for the Office of the Attorney declined comment on Cleland’s ruling.