Published May 16, 2012
HARRISBURG, Pa. – Jerry Sandusky again asked a judge to throw out the child sexual abuse charges against him on Wednesday, arguing that some counts are too vague to defend and others involve alleged victims whose identities have not been determined.
The former Penn State assistant football coach's trial is scheduled to get under way in less than three weeks, although the judge has not ruled on a separate motion from Sandusky asking for a delay.
In the filing, defense attorney Joe Amendola attacked the charges related to a person described in court records as Victim 2. The boy's encounter with Sandusky in a Penn State locker room a decade ago, and school officials' response to it, ultimately led to the departure of longtime football coach Joe Paterno.
Amendola wrote that the charges related to Victim 2 cannot be sustained based on the testimony of Mike McQueary, an assistant football coach who has said he saw Sandusky sexually abuse the boy in a team shower. McQueary's testimony at a preliminary hearing in December for two Penn State administrators accused of lying to a grand jury and failing to properly report suspected abuse "did not establish sufficient evidence to support these charges being submitted to the jury," Amendola wrote.
The date of that encounter had been listed in court records as March 2002 until last week, when the attorney general's office amended it to February 2001.
Amendola also argued that that prosecutors will not be able to show there was any sexual contact with a boy labeled Victim 6. The boy showered with Sandusky in 1998, authorities said, prompting a complaint by his mother to university police that produced an investigation but no charges.
Amendola told Judge John Cleland that he does not expect prosecutors to be able to "establish that any sexual contact took place" between Sandusky and Victim 6, "and the commonwealth will not be able to establish any criminal intent."
As for so-called Victim 8, allegedly seen in 2000 by Penn State janitor Jim Calhoun being molested by Sandusky, Calhoun suffers from dementia and is not able to testify, according to a report by the grand jury that investigated Sandusky. Amendola argued that will require Calhoun's co-workers to testify about what Calhoun told them, which would amount to hearsay that is not allowed as evidence.
Sandusky, 68, faces 52 criminal counts for alleged abuse of 10 boys over 15 years, allegations he has repeatedly denied.
A spokesman for the attorney general's office declined to comment on the new filing.
Widener University law professor Wes Oliver, who has attended Sandusky court proceedings and followed the case closely, said Amendola presented "substantial arguments" about victims 2, 6 and 8.
"It's possible they could all be gone from this case," he said.
Oliver noted that Amendola did not mention the change of date for the encounter that McQueary reported. He said the date change relates to the credibility of McQueary's account — and credibility is something jurors decide.
"We don't know if the prosecution may not have more evidence that will come in" regarding Victim 2, Oliver said. "All indications are now that it's just McQueary, and McQueary didn't describe something that amounts to any of these crimes" at a preliminary hearing for two Penn State administrators charged with lying to the Sandusky grand jury.
Sandusky's lawyers are apparently running into problems getting information about phone records related to the alleged victims, and Amendola asked Cleland for a court order directing telecom companies to produce material sought by defense subpoenas.
The defense filings on Wednesday also renewed a request for early release of grand jury material, and asked the judge to order prosecutors to respond to 14 supplemental pretrial discovery requests made earlier this month.
Cleland on April 12 dismissed a previous effort by the defense to have the case thrown out, but left the door open for Sandusky's lawyers to re-file. It was not immediately clear how soon the judge might rule on the new motions.
Cleland could have prosecutors file a written response, and schedule oral argument before deciding the matters.
Also pending before Cleland is a request made last week by Amendola to delay the start of trial, which is currently scheduled to begin in Bellefonte with jury selection on June 5.