Attorney General Kathleen Kane (AP Photo)
Senior leadership at the Office of Attorney General under Gov. Tom Corbett failed to promptly investigate and charge serial child molester Jerry Sandusky in 2010, a report issued Monday by Attorney General Kathleen Kane said.
A review of the investigation and prosecution of Sandusky released Monday indicated that a draft presentment recommending filing charges against Sandusky circulated in the Attorney General’s Office in March 2010. The presentment suggested charging Sandusky with involuntary deviate sexual intercourse, which is a felony; however, the recommendation was not acted upon for five months, according to the report. The report said grand jury proceedings lagged after the presentment was circulated, and little was done to identify or interview witnesses for approximately 10 months in 2010. The investigation also suggested that Sandusky’s home should have been searched before 2011 to bolster the investigation.
H. Geoffrey Moulton, whom Kane named to head the review, said at a press conference Monday that “the real problem” was that for long stretches of time, before the investigation “ramped up” in 2011, the resources of the grand jury were barely used.
“If you take as a given the evidence at the time, then the decision not to charge [Sandusky in 2010] fit within the acceptable bounds of prosecutorial discretion,” Moulton said during the press conference. “Had the investigators been more aggressive, had they taken additional investigative steps, they almost certainly would have had much more evidence, so that decision would have been a lot easier.”
However, the report also concluded that “the decision not to bring charges appears to have fit within acceptable bounds of prosecutorial discretion, though other prosecutors might reasonably have decided differently.”
According to the report, the search of Sandusky’s home uncovered photographs of already-identified victims, and a list of campers from Sandusky’s former and now-closed charity, Second Mile, with handwritten asterisks next to their names. Had his home been searched in 2010, additional victims could have been identified much earlier, the report said.
The findings stem from an investigation of Corbett’s handling of the Sandusky case, which eventually resulted in Sandusky being convicted on 45 of 48 counts of the sexual abuse of children.
Kane tapped Moulton to head the review in February 2013. Kane initially questioned whether the pace of the Sandusky investigation was influenced by Corbett’s decision to run for governor; however, supporters of Corbett have accused Kane of playing politics herself with the probe, as she had promised the investigation during her run for office.
The report also did not uncover any evidence that the prosecution of the case was in any way impacted by political considerations.
“While the delay in 2010 led some people involved in the investigation to speculate that politics had intruded into the decision-making process … this review uncovered no evidence to support that speculation, other than the fact of extended delay in reaching a decision,” the report said.
At the press conference Monday, Kane and Moulton did not identify who involved in the investigation speculated that politics were at play.
Corbett said the report validated the efforts of the prosecution team that worked under him.
“I am proud of the hard work of men and women who joined in the effort to support and fight for these victims,” Corbett said in a statement to the press. “The release of this report reaffirms the integrity of their efforts. It refutes each aspect of the case that the attorney general and others have questioned; has found no evidence of deliberate delay; and underscores the importance and appropriateness of the methods used in the investigation and subsequent conviction of a child predator.”
A response letter included in Moulton’s report that was submitted on behalf of several prosecutors, including Joseph E. McGettigan III, the lead prosecutor in the case, and then-Chief Deputy Attorney General Frank G. Fina, said searching Sandusky’s home and prosecuting the case without performing a full grand jury investigation would have jeopardized the admissibility of evidence and the possibility of a conviction.
“Suppression of the search warrant of Sandusky’s residence would have not only meant the loss of any evidence acquired from his residence, but also the loss of the ability to ever charge Sandusky for any victims subsequently identified as a result of information or evidence found in his residence as the ‘fruits of the poisonous tree,’” the response letter said.
The letter said the evidence available in 2010 did not link any abuse to Sandusky’s home, and that officials with Penn State University did not provide some key evidence regarding allegations against Sandusky in 1998 and 2001.
Matthew Mangino, a defense attorney and former district attorney for Lawrence County, said a 10-month delay during grand jury proceedings seemed to be a lengthy gap in a child sex-abuse investigation, and that prosecutors could have attempted to get a search warrant from a judge to ensure that anything gathered from Sandusky’s home would have been admissible.
“The worst that happens is a judge tells you no,” said Mangino, who writes a regular column for Pennsylvania Law Weekly. “You have to weigh the gravity of the circumstances and do everything in your power to proceed with the investigation.”
Mangino said he felt that, as a “case study,” which was how both Kane and Moulton referred to the report, the review was successful.
“We can always improve the way we investigate these cases, and the ways we protect the most vulnerable segment of our society,” Mangino said. “If something is taken away that helps a prosecutor in the future, I think it was worthwhile.”
However, according to David W. Zellis, a defense attorney who formerly was first assistant to the Bucks County district attorney, just because the grand jury is not issuing subpoenas does not mean the investigation has stopped. Zellis, who said he was the chief of the investigating grand jury in Bucks County for about 15 years, said police can continue performing the leg work in finding witnesses.
“A grand jury is a slow, deliberate process,” Zellis said. “Ten months doesn’t seem unusual.”
Zellis added that having the current attorney general review the work of a former attorney general could have a “chilling” effect on prosecutors in the future.
“You could have people afraid to do their jobs because of politics,” Zellis said.
During the press conference Monday, Kane suggested she would not have chosen to use the grand jury process, and instead would have continued the investigation through the police. She said there was “no doubt” that Sandusky would have been charged earlier had she been heading the prosecution.
“It doesn’t necessarily mean someone else does it the wrong way,” Kane said at the end of the press conference, adding that it is not up to her to decide whose way of handling the prosecution would have been more successful. “It’s up to the public to decide what style of leadership best serves the public.”