McClure litigation continues, both sides argue bail

A flurry of motions and responses have been filed between the attorneys for Jalene McClure and the Centre County District Attorney’s Office since a Clinton County judge decided texts did not affect McClure’s original trial.

McClure was convicted in September 2014 of an August 2010 assault on a 5-month-old child and sentenced to 10-to-20 years. The sentence was vacated in August and sent back to Bellefonte for a new trial.

Within days of sentencing, McClure’s attorney, Bernard Cantorna, filed an open records request for phone records that showed text messages between then Centre County Judge Bradley P. Lunsford and members of the District Attorney’s Office, some of which were suggested to have been made ex parte communications during trial.

A month after her October 2014 sentence was delivered by Lunsford, President Judge Thomas King Kistler removed Lunsford from hearing criminal cases other than DUIs. Lunsford announced he would retire at the end of his term in 2015.

Clinton County Senior Judge J. Michael Williamson decided in an Dec. 9 pretrial conference that the texts were not an influence in McClure’s trial, saying in a Dec. 28 order dismissing a motion to preclude the trial that while several hearings were conducted in an attempt to “determine the accuracy of the factual allegations” set forth by the McClure, no evidence of the exact language in the texts were available.

“With respect to the social interaction between Lunsford and members of the district attorney’s staff,” Williamson wrote, “while perhaps more extensive that would be anticipated in a small county, we find nothing so egregious as to warrant dismissal of the charges against the defendant.”

After McClure’s Dec. 9 decision, Cantorna submitted a motion dated Dec. 16 to prohibit counsel for the commonwealth and the defendant as well as their assistants from making statements to the media. An order on the motion has not yet been filed.

A few days later, Cantorna and attorney Sean McGraw submitted a motion for bail pending appeal by Lunsford, arguing “it would be manifestly unjust for Ms. McClure to remain incarcerated while former Judge Lunsford litigates an appeal to the Superior Court on grounds rejected by this court.

“It would be equally manifestly unjust for Ms. McClure to undergo a second trial without being afforded the opportunity to present ... the testimony of former Judge Lunsford about the content of his communications with the prosecutors during times associated with the trial of her case,” the motion continued.

Lunsford was subpoenaed by McClure to appear and testify at the hearing on her motion to have her case dismissed. A motion by Lunsford to quash the subpoena was denied, and he filed a notice of appeal to the state Superior Court in return.

The appeal is still in litigation.

The District Attorney’s Office responded to the motion for bail Monday, calling the continued claims by McClure a “fishing expedition” to make “unsupported scurrilous allegations.”

“While the defendant is trying hard to continue a side show to delay retrial,” wrote Assistant District Attorney Michael Osterberg, “the commonwealth has an immense interest in swiftly re-trying this defendant for her intentionally abusive acts against a helpless and innocent infant.”

Osterberg’s response also referred to McClure’s attempt at a preventing a retrial a “political diversion,” noting that Cantorna announced his candidacy for district attorney immediately after filing the motion for double jeopardy.

“The personal motives of the defendant’s attorneys are so obvious that the commonwealth is actually concerned the issue could be subsequently raised in a (post-conviction relief act) proceeding,” the response said.

Jeremy Hartley: 814-231-4616, @JJHartleyNews