Convicted pedophile Jerry Sandusky’s quest for a new trial will continue Tuesday, as his lawyer will take the case before the state’s Superior Court.
Defense lawyer Norris Gelman will base his arguments on some particular moments of the trial, such as a comment uttered by the prosecutor, as well as the long-running claim that the lawyers didn’t have enough time to prepare Sandusky’s trial defense. Gelman also will say that the issues were not harmless errors.
The hearing is at 3 p.m. at the Luzerne County Courthouse in Wilkes-Barre. The court is holding the proceeding in northeastern Pennsylvania as part of its initiative to make hearings more accessible to residents.
Gelman wrote in his brief that prosecutor Joseph E. McGettigan III prejudiced the jury in his closing arguments. That’s when McGettigan brought up Sandusky’s interview with Bob Costas, and the defense argues that was a reference to Sandusky’s not taking the stand.
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Gelman said McGettigan’s closing argument was rife with “adverse references” to Sandusky choosing not to testify.
One of the comments made by McGettigan was that Sandusky “had wonderful opportunities to speak out and make his case,” referring to the interview on NBC with Bob Costas after his arrest. Another comment was McGettigan comparing himself to Costas: “I had been told I’m almost as good a questioner as Bob Costas, I think, or close.”
“Whether or not the prosecutor was as good as Bob Costas in questioning persons is irrelevant,” Gelman wrote in the appeal brief. “It found its way into the prosecutor’s summation because it was designed to have the jurors bemoan the fact that the prosecutor did not have a chance to question (Sandusky) because (Sandusky) did not testify.
The defense lawyer also is also basing claims for a new trial on the grounds that trial Judge John Cleland rejected multiple requests for a continuance in the case. Trial defense lawyer Joe Amendola testified during an appeal hearing before Cleland that he had thousands of pages of documents to read but didn’t have time to review them all before the trial.
But Amendola also conceded that he reviewed the documents after the trial and none of the information would have altered his handling of the trial.
But Gelman said that doesn’t matter. “It caused counsel to go to trial not knowing what was in the massive amount of material he had no time to read, and cause him to try the case blind, so to speak,” Gelman said.
The appeal also contains a challenge related to the instructions the trial judge gave the jury before its deliberations began.
The defense maintains that the judge erred when he told the jurors not to take into account the length of time it took for the young men to come forward about being abuse by Sandusky.
The defense argues the young men’s delays in coming forward should not have been ignored, but Cleland said his research showed it was common in sex abuse cases for victims to delay coming forward.
Legal expert Wes Oliver, who followed the case and watched the trial, said he thinks Sandusky’s appeals will be rejected. He said he expects the Superior Court justices to determine that Cleland made no errors, or that if Cleland was wrong, the errors were harmless and do not affect the outcome of the trial.
Oliver said McGettigan’s references to the Sandusky interview with Costas may be considered harmless errors. Oliver said the prosecutor made “many self-aggrandizing comments” during the closing arguments of the trial, but the comments didn’t have an effect on the jury.
“If you look at it in terms of how much error it injected into the case, it probably didn’t make the jury sit there and wonder, ‘Wow, he really should have testified,’” said Oliver, a criminal law professor at Duquesne University.
Oliver said Cleland was right that the jury should not consider the length of time it took for the victims to come forward. In addition, Oliver said the law does not support the defense’s arguments that continuances should have been given because of the voluminous amount of documents to read before the trial.
Oliver said he was surprised to see that the defense did not appeal on the grounds a janitor was allowed to provide hearsay testimony about a shower incident from 2000. That matter is not part of the appeal and cannot be raised during the oral arguments, he said.