New documents in Jerry Sandusky’s latest appeal tackle not his trial and not his witnesses. They don’t even address the substance of the grand jury that indicted him.
Instead, they address how his case got in front of that grand jury at all.
In a 29-page pleading, attorneys Al Lindsay and Andrew Salemme go after a chain of dominoes that brought the case to the grand jury.
At issue? According to the attorneys, the original germ of the whole case was an allegation that wasn’t yet proven when it was presented in a way that made it seem that it had been.
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Sandusky was convicted in 2012 of 45 counts of child sex abuse crimes. The young man known as Victim 1 first reported inappropriate touching over his clothes to his mother who contacted Central Mountain Hisgh School in 2008.
When initially interviewed in November 2008, Sandusky’s lawyers say the young man reported no sexual contact. He also didn’t say anything about it to Clinton County Children and Youth Services. According to court documents, a caseworker reported he was “uncooperative because he did not actually disclose any sexual abuse,” and referred him to a psychologist.
But a report to state police said something different.
“In that report, (the caseworker) misstated that (he) alleged to her that Mr. Sandusky sexually abused or exploited him,” Lindsay and Salemme wrote, saying that psychologist Michael Gillum and the victim wrote in a later-published book that Gillum wrote that report and gave it to the caseworker.
“As of December 12, 2008, (Victim 1) still had yet to inform law enforcement authorities that Mr. Sandusky had sexually abused him,” they said. Instead, they point to specific denials that there had been oral sex or that Sandusky had touched the victim’s genitals.
The case rolled on, with more interviews and more law enforcement involvement. It was at that point that the Centre County District Attorney’s office bowed out, turning the case over to the Office of Attorney General. DA Michael Madeira’s wife was the biological sister of one of Sandusky’s adopted children.
The OAG opted not to simply file charges, but to turn the case over to an investigative grand jury in May 2009.
“Significantly, the matter was submitted on the grounds that a ‘founded’ report of sexual abuse had been determined by the Clinton County CYS,” the attorneys wrote. “However a founded report could only exist where there had been a judicial determination that (the victim) had been abused. ... At the time the case was submitted, the grand jury had not, through another investigation, learned of any information implicating Mr. Sandusky in criminal wrongdoing.”
The attorneys said the grand jury had no jurisdiction in the matter.
According to state law, a multicounty investigating grand jury, like the one that heard Sandusky’s case, has “jurisdiction to inquire into organized crime or public corruption or both under circumstances wherein more than one county is named.”
Lindsay and Salemme say using the grand jury in the Sandusky case was overreaching.
“The language of the statute does not give a grand jury carte blanche to investigate all crimes that occur in a county once a grand jury is impaneled,” they wrote, claiming there was no allegation of public corruption or organized crime.
Sandusky was accused of using his positions as creator of The Second Mile, a charity for at-risk kids, and an assistant Penn State football coach, later retired, to prey upon young boys. His convictions related to 10 victims.
The case led to $93 million in payouts from Penn State to 32 claimants, changes to statewide laws on reporting abuse and the dissolution of The Second Mile. Criminal cases against former university president Graham Spanier, former vice president Gary Schultz and former athletic director Tim Curley are still pending.
But in May 2009, the attorneys say, there was no other information.
“(The victim’s) statements at the time the grand jury investigation began did not give rise to the suggestion of crimes involving public corruption or organized crime,” they wrote. “Therefore the grand jury had no subject matter jurisdiction to investigate.”
They asked that the charges rising from that grand jury investigation be dismissed.
Sandusky is continuing to pursue a Post-Conviction Relief Act petition in Centre County court. A hearing set for Friday was canceled after the grand jury judge, Barry Feudale, was subpoenaed but was unable to appear. The hearing will be rescheduled.
Sandusky remains an inmate at Greene state prison in Waynesburg serving a 30- to 60-year sentence.