Legalese

01.10.13

A Sandusky Retrial? Lawyers Ask for Another Try

Don’t bet on it. The convict’s lawyers put up a weak argument for a do-over in court today. Diane Dimond reports. Plus, new details on the ex-coach’s life in prison.

Jerry Sandusky hadn’t breathed free air since late June 2012. Not since he was found guilty of 45 counts of sexually abusing 10 young boys at both Penn State’s football complex and at his home. But there he was on Thursday, bounding back into the Centre County, Pa., courthouse in Bellefonte to ask Senior Judge John Cleland for a new trial.

Looking far healthier than he did at his October sentencing, the former Penn State football coach entered the courtroom all smiles. Wearing a short-sleeved red uniform and clunky black prison boots, he waved enthusiastically toward his wife, Dottie, one of his adopted sons, and three benches full of supporters. At the defense table, Sandusky had an animated and amiable chat with his new Philadelphia-based appellate lawyer, Norris Gelman, as he waited for the hearing to begin. Also at the table: his lead trial attorneys, Joe Amendola and Karl Rominger.

Last October, at age 68, Sandusky was sentenced to serve no fewer than 30 and no more than 60 years behind bars. This attempt to try to get the judge to award him a new trial felt, at times, like a Hail Mary pass as his team tries to change the course of things so Sandusky doesn’t have to spend the rest of his life in prison.

The defense’s main argument to the court was that they simply did not have enough time to adequately prepare for trial. The team has long been building a record on this point. Three months before the trial Rominger filed what’s called an entry of appearance document that read, in part: “Counsel is gravely concerned that the short time interval until trial will not allow adequate time for preparation by the defense.” He told the court he felt he was being placed in “an ethical dilemma of being made to go forward without adequate preparation.” During a private meeting in chambers the day jury selection began, Amendola literally begged for more time. “I feel that we’re duty-bound ethically to tell the court we’re not prepared to go to trial at this time.” 

Today, the court heard specifics. The only witness was the earnest Amendola himself. He laboriously went over a list of the tsunami of documents Sandusky’s counsel had been faced with—9,450 from the prosecution, more than 12,000 in all—and exactly when they had arrived at his office. He spoke about the number of copies they had to make of each document and how their sole copy machine had broken down over the Memorial Day weekend. Amendola also complained that federal prosecutors had dragged their feet in handing over vital information like victims’ names, dates of birth, addresses, and phone numbers.

Gelman told Judge Cleland that because he had not agreed to postpone the trial, the defense had shown up “flying blind,” not fully understanding what was in the massive pile of documents. “That is not the way our system should work,” Gelman said.

Sandusky was arrested in November 2010; his trial began seven months later on June 11, 2011.

Prosecutor Joe McGettigan questioned Amendola intently and ultimately got him to admit that, since the verdict, Amendola hasn’t discovered and cannot name “even one document, item, or person” that would have changed his behavior during trial. Outside court, attorney Tom Klein, who represents victim No. 5, pooh-poohed the defense team’s tactic. “I’ve been in litigation where there have been 15 million documents to review. Seriously, folks, for lawyers this is like reading the newspaper!”

The defense also complained that Judge Cleland had failed to give the jury an instruction about victims’ “prompt reporting” of a crime. Some of the 10 young men who testified at trial said their abuse had taken place 12, 13, or 14 years earlier. Gelman argued that a pre-deliberation instruction to the jury “should have included language that a delayed prompt report of abuse may be used to question the reliability of the witness.”

Judges don’t like to be told that they have done wrong during a trial, but requests for a new trial can often boil down to one key question: do they want to reverse themselves or have a higher court do it for them?

Another appellate point raised by the defense was the hearsay testimony of a janitor who told the jury about what another (now deceased) co-worker had said after seeing Coach Sandusky and a young boy behaving sexually in a Penn State shower in 2001. Judge Cleland asked Gelman, “Say there is a reversal on those [few] counts. Does that require a new trial?” Gelman quietly answered “no,” and that seemed to negate his hearsay point. 

Does the defense team believe it can be successful in winning a new trial for one of America’s most notorious convicted pedophiles? “In the legal chess calculus,” Rominger told The Daily Beast, “it’s a smart move. You might get another negative result, but it’s your only chance to get the result you want: not dying in prison.”

A final defense argument for a new trial revolved around prosecutor Joe McGettigan’s closing statement to the jury. In it he had said Sandusky had a chance to make his case personally but had chosen to do it publicly with NBC’s Bob Costas. The inference, said Gelman, was that Sandusky had refused to testify—his constitutional right—which would suggest that he had something to hide. This argument seemed to fall fairly flat.

Still, Sandusky remained his optimistic self during the 90-minute hearing. Although sitting a bit more stooped in his chair these days, he seemed engaged in the process, taking notes and nodding his head in agreement as his lawyers laid out his plea for a do-over.

Sources tell The Daily Beast he has adjusted nicely to prison life at the state level, enjoying many more privileges than when he was in county lockup. Although Sandusky was classified as a low level 2 inmate, he is housed in a level 5 prison, the maximum security facility in Greene County, Pa., where most of the state’s death-row inmates reside. For his own safety Sandusky is confined to his cell 23 hours a day, but he now gets library privileges and can bring reading material back to his bunk. He gets three showers a week, two phone calls a month, and his wife makes the 400-mile round trip from State College to see him once a month, although they are “no-contact” visitations. The Daily Beast has learned Sandusky also has a radio and a television of his own and gets both ESPN and ESPN 2 in his cell, allowing him to watch plenty of sporting events.

Sitting quietly in the back of the courtroom today was Debra Rose Long, the birth mother of Matt, one of the Sanduskys’ six adopted children. After the boy burned down a barn in 1994 Sandusky petitioned to adopt the child, but Long fought it, saying she didn’t think the relationship between the man and her son was healthy. She lost the fight. Matt has now revealed that Sandusky began sexually abusing him when he was 8 and a member of the coach’s Second Mile charity for children program. Matt claims the abuse continued until he was 15.

“I wish he’d look around and see me standing here,” Long said as she stared at the back of Sandusky’s head at the defense table. What does she think about the possibility of a second trial?

“I’m mixed on that,” she told The Daily Beast. “I think he got off easy. If they tried him again, I’d hope he’d get even more prison time.” And how is her son Matt doing these days? “He’s strong,” she said with a firm dip of her chin, “and getting stronger. We’re both in counseling. We’ll be fine.”

After court, McGettigan said simply, “I like our chances.” His colleague Frank Fina added, “I think the people of Pennsylvania should be confident that this verdict will stand.”  

The judge will likely make his ruling known within 30 days, if not sooner.