WILKES-BARRE, Luzerne County — Jerry Sandusky’s defense lawyers didn’t properly raise objections during several key moments during last summer’s trial, and that now appears to hurt the convicted pedophile’s shot at a new trial.
The lawyer representing Sandusky during the appeal process laid out his claims Tuesday to a panel of three state Superior Court justices. The panel of judges did not immediately rule, but their questions for Sandusky lawyer Norris Gelman brought out answers that would seem to point to the claims being struck down.
The appeal revolves around specific moments during the trial and how Judge John Cleland handled them. Gelman argued to the Superior Court that those moments had adverse effects on the jurors, who returned convictions on all but three of the 48 counts they considered.
For instance, Gelman said a prosecutor made improper comments about Sandusky not taking the stand in his own defense but giving an interview to Bob Costas on NBC shortly after his arrest.
Gelman also challenged the judge’s instructions to the jury, saying the judge erred when he allowed the jury to disregard the fact that it took the young men who testified against Sandusky years to come forward about their abuse.
The defense wanted that language, saying it can be considered against the witnesses’ credibility, as one of the defense’s theories at trial was that the young men made false allegations for a big payday.
The prosecutor for the Attorney General’s Office who argued the appeal said the defense’s claims are not within the bounds of the law. The lawyer, James Barker, said that even if the court finds there were errors made that the mistakes should be deemed harmless, or without an effect on the outcome of the trial.
Sandusky, who’s serving a minimum 30-year sentence in solitary confinement, did not attend the hearing.
His wife, Dottie, did make the trip to the Luzerne County Courthouse, where the Superior Court held the hearing as part of an outreach initiative to make court proceedings more accessible to the public.
Gelman was given 15 minutes to argue his points, and he spent about 10 minutes on one issue: the jury instructions from Cleland.
“ None of them made a prompt report, and the time that lapsed between the molestation and the initial report is striking,” said Gelman, who cited case law that warns against leaving out a reference of failing to report promptly in the jury instructions.
Cleland left that out because he said his research showed delayed reporting was common in sex abuse cases. The defense lawyers at the trial, Joe Amendola and Karl Rominger, had asked to add that phrasing in the instructions to the jury, but the judge denied their motion during a closed-door conference in the judge’s chambers.
Superior Court Judge Jack Panella asked Gelman whether the defense lawyers were prohibited from raising the issue of the victims’ delayed reporting when they were cross-examined or during the defense’s closing arguments. Gelman said they weren’t.
But Gelman argued that the jury would expect to hear the line from the lawyers for a defendant. However, the judge is a more impartial person, he said.
“If the judge had given this charge … the difference is night and day between defense counsel arguing it to the jury and the judge charging it to the jury,” Gelman said.
Barker said Cleland’s instructions that the jury should not consider the length of time it took for the victims to come forward was in recognition that children nowadays don’t immediately run home and report something wrong to their parents.
Instead, Barker argued, the multiple witnesses’ testimony about being abused shows “overwhelming evidence” of Sandusky’s guilt.
“How many people have to testify that he is molesting little boys?” Barker said. “Over and over and over again.”
Barker said the debate should not matter, because Amendola and Rominger didn’t object to the jury instructions when the judge was giving them to the jurors.
Therefore, Barker said, the issue does not belong before the court on appeal.
The other issue Barker challenged on the same grounds was the defense’s claims about prosecutor Joseph McGettigan’s comments to the jury in his closing argument. McGettigan pointed out that Sandusky couldn’t answer Costas’ questions during the TV interview shortly after his arrest and that McGettigan compared his interviewing skill to Costas’.
Gelman argued that the references were “so egregious” and harmful to the jury’s perception that the trial judge should have stepped in.
But when Panella asked if the defense lawyers at the trial had requested a curative instruction or a mistrial, Gelman said no. As a result, Barker said the issue hadn’t been preserved properly and cannot be considered by the Superior Court.
The third issue that Gelman raised in the appeal was one that long has been a point of contention for the trial lawyers: Cleland’s denying defense motions for continuances.
Gelman told the panel of judges that Amendola was “flying blind” because he received thousands of documents through the discovery process and didn’t have time to review them. Gelman even contended that the Attorney General’s Office delayed handing over some items and only did so after a court order.
But Barker said the defense lawyers “wasted their time” trying to get their fingers on documents that had nothing to do with their case, even despite being told that by the prosecutors.
Barker said the documents that were turned over in the time right before the trial had to do with the prosecution’s case against former Penn State administrators.
“That’s not our fault; it’s not the trial judge’s fault,” he said.