Jerry Sandusky’s attorneys say there shouldn’t be any reason the judge who presided over the grand jury that recommended child sex abuse charges against him shouldn’t be compelled to testify.
Former judge Barry Feudale opposed the witness certification attorneys Al Lindsay and Andrew Salemme submitted in the Post Conviction Relief Act petition for their client, the retired Penn State defensive coordinator convicted in 2012.
“There is absolutely no way that Judge Feudale could testify in a PCRA proceeding and not touch on grand jury material,” Feudale’s attorney, Sam Stretton, wrote in May.
According to Stretton, Feudale signed a secrecy oath in front of Judge Norman Krumenacker.
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But Lindsay and Salemme say that Feudale waived his judicial privilege by testifying in front of Krumenacker regarding grand jury leaks.
Even if McKean County Senior Judge John Cleland doesn’t agree with that argument, Sandusky’s attorneys have other reasons they say Feudale should not be left off the hook with their subpoena.
“(We) are not seeking to inquire into the judicial thought processes of Judge Feudale nor is this a civil defamation action,” they wrote. “Rather, the inquiries can be focused on factual issues: such as the fact that he appointed special prosecutors to investigate grand jury leaks during the Sandusky investigation, that allegations of leaks existed, that he was removed as the grand jury judge prior to receiving any report, and that he received correspondence outlining some of the alleged leaks.”
They also pointed toward questions of bias in Feudale’s position as he presided over the case.
“In short, because judge Feudale has previously testified, the issues pertain to bias, and questions can be focused on factual issues, no judicial or deliberative process privilege attaches to him as a former judge,” the lawyers wrote.
Sandusky has an evidentiary hearing scheduled for his petition over Aug. 12, 22 and 23.
He maintains his innocence in the case while serving a 30- to 60-year sentence at Greene state prison in Waynesburg.
Lindsay said repeatedly in arguments in front of Cleland on May 2 that he could not explain several points Cleland wanted clarified about potential testimony from multiple witnesses because of an order from Krumenacker.
Feudale, who became embroiled in controversy with Attorney General Kathleen Kane, was removed as a grand jury judge in 2013 and had his senior judge status revoked in 2015. Kane accused him of inappropriate behavior including bringing a knife into her office.