Published September 14, 2013
HARRISBURG, Pa. – Jerry Sandusky's challenge to his child molestation conviction goes before a state appeals court on Tuesday, as the former Penn State assistant football coach seeks to overturn a sentence that could keep him behind bars for life.
Pennsylvania's Superior Court will decide whether prosecutors made an improper reference to the fact that Sandusky did not testify, whether jury instructions were mishandled and whether the defense should have been given more time before trial to digest a large volume of investigative material.
The court is meeting in Wilkes-Barre, part of efforts to make its proceedings accessible to a wider public.
Sandusky, who spent decades working under football coach Joe Paterno, was convicted in July 2012 of 45 counts of sexual abuse of 10 boys, including eight victims who testified against him. Judge John Cleland subsequently declared him a sexually violent predator and sentenced him to 30 to 60 years in state prison.
Sandusky is seeking a new trial. His appeals attorney, Norris Gelman, said this week that Sandusky, who is largely isolated from the prison population, will not be in the courtroom.
Gelman argued in an appellate brief that Cleland should have issued an instruction to jurors that addressed the length of time it took his victims to report their abuse, which for four of them was more than 11 years.
He noted that Cleland told the lawyers he believed it was not unusual for victims of child abuse to delay reporting it.
The attorney general's office, in its appeals brief, said it was clear to jurors that the defense was arguing that the abuse never occurred, and arguing that the victims were making up stories in hopes of cashing in. Penn State has since settled some of their claims for undisclosed sums.
"The record demonstrates that the victims had clear reasons for not disclosing the abuse by Sandusky: not only were they ashamed of the acts of abuse," the AG's office wrote, "but Sandusky gave them gifts, including access to the PSU football program, and was a prominent figure who was more likely to be believed than they were."
Gelman also focused on a reference, by prosecutor Joe McGettigan, to an NBC television interview Sandusky gave shortly after his arrest. McGettigan told jurors that Sandusky "had wonderful opportunities to speak out and make his case."
The prosecutor told jurors that he "only heard him on TV."
Gelman argued that was among several references to Sandusky not testifying. Failure to take the stand in one's own defense is not supposed to be used against a defendant.
The attorney general's office said McGettigan's comments were confined to the TV interview and did not refer to Sandusky not taking the stand in his own defense. Prosecutors argued the comments "constituted fair response to defense counsel's argument relating to the interview."
Sandusky's lawyers "went into trial 'blind' as to much of the material" from prosecutors, estimated to be about 9,000 pages, Gelman said. Sandusky's lawyers were turned down in several requests for a delay, and Cleland shepherded the case from arrest to trial in just over seven months.
In a post-sentencing hearing, defense attorney Joe Amendola told Cleland that he had still not come across any document that would have altered his approach at trial. But Gelman said more time would have allowed Amendola to better incorporate the material into a defense strategy.
Prosecutors said that the defense had months to prepare for trial once Sandusky was charged, and that Sandusky and Amendola knew in 2008 there had been a report of sexual assault.