PENNSYLVANIA RECORD

The judge who handled the serial molestation case involving former Penn State assistant

football coach Jerry Sandusky has rejected the defense’s post-trial motions in the case, setting the stage for a possible Superior Court appeal.

Senior judge John M. Cleland, who was specially appointed to oversee the case in Centre County, filed an opinion Jan. 30 in which he basically flat out rejected the claims made by Sandusky’s attorneys that they were given an inadequate amount of time to prepare for trial among other claims.

“Based on trial counsel’s testimony it has been clearly established the defense is not able to prove any actual prejudice flowed from the court’s denial of the continuance motions,” Cleland wrote. “While the volume of discovery produced might have been ‘vast,’ as the defense characterizes it, a post-trial review of the material has identified nothing that would have changed the defense trial strategy or would have been useful in advancing the defendant’s defense.”

Sandusky, the former defensive coordinator for the Penn State Nittany Lions football team, was convicted on 45 counts of child sex-abuse following a jury trial this past summer.

In October, Cleland sentenced Sandusky to between 30 and 60 years in state prison.

Sandusky’s lawyers subsequently appealed both the conviction and the sentence.

One argument was that the defense team was not given enough time to go through discovery and other prosecutorial materials prior to trial, an argument rejected by Cleland in his opinion.

Sandusky’s lawyers had argued that Cleland’s failure to grant certain continuances under the circumstances constituted a “structural defect.”

Cleland, however, disagreed, writing that as both a matter of fact and of law, “I do not think it can be said that either of the defendant’s trial counsel failed to test the prosecution’s case in a meaningful manner.

“The defendant’s attorneys subjected the Commonwealth’s witnesses to meaningful and effective cross-examination, presented evidence for the defense, and presented both a comprehensive opening statement and a clearly developed closing argument,” Cleland wrote. “This is simply not a case where trial counsel’s inability to review before trial all of the discovery material produced can be said to have resulted in a ‘structural defect’ that made the lack of a fair trial a virtual certainty.”

Sandusky’s attorneys had also argued in their post-trial motions that the jury was improperly charged.

The ruling states that the defense team had requested Cleland charge the jury that the failure of the victims in the case to make a prompt complaint about Sandusky’s sexual assault could be considered in evaluating their credibility.

Cleland denied that request, he wrote, because in his view “the research is such that in cases involving child sexual abuse delayed reporting is not unusual and, therefore is not an accurate indicia of honesty and may be misleading.”

At trial, Sandusky’s lawyers had attacked the credibility of the victims, asserting that they were possibly colluding against Sandusky, and might have been in this for a possible payday during anticipated subsequent civil proceedings.

“In the context of the case, and considering the defense’s line of cross-examination and argument, I concluded the jury would be more appropriately guided by the specific references of the standard credibility charge than it would be by the more generalized guidance of the prompt complaint charge,” Cleland wrote. “The charge as given instructs the jury to consider the specific credibility issues raised by the defense: memory, self-interest, motive, and bias.”

Cleland went on to dismiss the other five post-trial motions, effectively setting the stage for an appeal to the state’s Superior Court.

The judge rejected claims by the defense including that the jury was erroneously instructed regarding its consideration of Sandusky’s character evidence; that the failure to give both the prompt complaint instruction and the phrasing of the character evidence instruction impaired the defendant’s defense; that the prosecution, during closing arguments, improperly commented on the defendant’s failure to testify at trial; and that it was an error not to dismiss the charges filed against Sandusky because of lack of specificity.