Defense in Penn St. case digs into accusers' pasts
HARRISBURG, Pa. – The alleged victims of the Penn State child sexual abuse scandal are finding there isn't much in their pasts that the defense isn't trying to find out. Jerry Sandusky's defense team wants to know their IQs, how well they did in school and even their medical histories.
In a series of discovery requests made to the attorney general's office in recent months, Sandusky lawyer Joe Amendola has sought school transcripts, medical records going back to birth, Internet search histories, Facebook account details, employment-related documents and cellphone and Twitter records.
Prosecutors have turned over some records, don't have others and argued that many requests are not proper under state law — a determination that will ultimately be up to the presiding judge, John Cleland.
Lawyers for Sandusky's alleged victims are critical of Amendola's tactics, with one accusing him of "a despicable act of cowardice." The question of how much information the defense is entitled to will be the subject of a pretrial hearing Wednesday.
Credibility of witnesses and the reliability of their recall will likely be pivotal issues in Sandusky's upcoming criminal trial, with allegations that go back in some cases well over a decade.
On Monday, prosecutors said they had misdated by a year one of the alleged crimes, an encounter in which an assistant coach said he saw Sandusky attack a naked boy in the shower. That disclosure prompted lawyers in a parallel criminal case — that of two Penn State administrators accused of not reporting suspected abuse — to say the charge should be dismissed because the statute of limitations has expired.
Legal experts said Amendola's strategy could produce information to bolster his theory that accusers have colluded to lie about Sandusky in hopes of hitting the jackpot with a lawsuit.
Accusers who also plan to file lawsuits can be seen as being motivated both by telling the truth and by making money, said David A. Harris, a University of Pittsburgh law school professor who teaches criminal law procedure and evidence.
"That doesn't mean the witness isn't telling the truth — it simply opens up an avenue for the witness to be attacked," he said.
But not everything the defense learns will be allowed for use at trial, currently scheduled to begin June 5. That will be determined by rules of evidence, voluminous case law and Cleland's judgment.
"The law is pretty clear that the court needs to employ a balancing test and weigh what the privacy interests are," said Fortunato N. Perri Jr., a Philadelphia defense lawyer and former prosecutor.
There is also the risk of backlash among jurors over attacks on people who claim they were sexually assaulted as children, although the passage of time and a shortage of forensic evidence may make credibility even more important than usual, Harris said.
Sandusky can review materials sent to his lawyers, raising the prospect of him being able to see the personal health, school and psychiatric records of the very people he is charged with sexually abusing. Authorities allege Sandusky acted to control and manipulate young men who had behavioral or emotional problems.
The state attorney general's office lost a recent effort to have Cleland throw out defense subpoenas and rein in their future use. Amendola declined to comment, citing Cleland's partial gag order.
Objections to defense subpoenas sent to schools and governmental bodies are also expected to be discussed during the Wednesday court hearing in Bellefonte.
Amendola co-counsel Karl Rominger said last week that criminal defendants face "trial by ambush" so their ability to subpoena records and information can be a way to counteract prosecutors' capacity to compel disclosure via the grand jury process.
"It's about learning everything and anything," Rominger said. "It doesn't mean any particular item of information would be used in a trial."
The court record does not indicate how many other organizations were sent defense subpoenas directly, only those that have filed objections.
Sandusky's trial on 52 criminal counts could bring to the stand eight or more men to claim they are victims in the case. Sandusky, 68, has steadfastly denied the allegations and is confined to his home to await trial.
The range of material Sandusky has sought was reflected in 36 discovery requests between Dec. 29 and April 23 that covered 214 categories. Amendola wrote that the requests had largely been ignored by prosecutors.
Prosecutors responded this week with a point-by-point review of what has been turned over, noting in many cases they did not possess the records sought and saying dozens of other requests were not proper under court rules.
An attachment to that document mentioned by name at least one accuser, the young man called Victim 1 in court documents, in violation of an order by Cleland to keep the names of alleged victims confidential. The attorney general's office received Cleland's permission to seal that attachment Tuesday, and it no longer appeared with other Sandusky case documents online. Cleland's order described the disclosure as inadvertent.
Victim 1 is the young man who was allegedly sexually molested by Sandusky after the met through Sandusky's charity for kids, The Second Mile, and it was his mother's complaint to school officials that was reported to authorities, leading eventually to the wider investigation and the criminal charges.
Michael J. Boni, a civil lawyer for Victim 1, called the attorney general's office's disclosure an innocent mistake, but had harsh words for the defense's legal strategy, saying Amendola has asked for evidence that is not admissible in court. He called a discovery requests an effort to impeach the credibility of alleged child rape victims and "a despicable act of cowardice."
"The evidence he seeks from school records, labor records, etc., all inarguably go to reputation, which is not relevant or admissible in rape cases," Boni said. "Talk about adding insult to injury. First the boy was raped, now Amendola seeks to besmirch Victim 1's character in the press, no doubt to taint the jury pool. It's all so wrong."
Another attorney, Jeff Anderson, sued Sandusky and others in November on behalf of a man who claims he was sexually abused more than 100 times and threatened by Sandusky. Anderson's client is not among the 10 alleged victims in the criminal case.
"I think they're trying to send a message to the victims, that if you have the courage to speak out, we're going to get you and we're going to out you," Anderson said.
Mike McQueary, the assistant who reported seeing the shower attack, filed a notice Tuesday that he plans to sue Penn State. Details were scant, but his lawyer described it as a whistle-blower case. McQueary was placed on administrative leave in November.