Sandusky attorney appeals judge's order prohibiting release of discovery materials

By Jon Campisi | Jul 16, 2012

A lawyer for convicted serial child molester Jerry Sandusky is appealing part of a trial

court judge’s order issued late last month that bars defense counsel from sharing discoverable materials not part of the record during trial with those not directly involved in the case, such as members of the press.

The June 26 order by Common Pleas Court Judge John M. Cleland, who oversaw Sandusky’s child sex-abuse trial in June, stated that no material provided by the commonwealth to the defense team that wasn’t made part of the record at trial shall be disclosed to any person or entity not directly involved in Sandusky’s prosecution.

The order also required defense attorneys to provide the court, under oath, with a list of outsiders with which the information in question was shared.

It is that second part of the order that defense attorney Karl Rominger took issue with, and that is subject of his appeal to the state’s Superior Court.

In a concise statement of matters complained of on appeal that was filed at the Centre County Court of Common Pleas July 12, Rominger argues that the court erred in entering an order that went beyond the protective order agreed upon at the hearing, “when it unilaterally imposed a condition that counsel for the defendant certify under oath with whom discovery was delivered to, as this was not part of the agreement referenced in the preamble to the Order.”

The appeal notice goes on to state that this portion of the court order invades the “province of attorney work product,” and that the court lacked the authority to retroactively impose a protective order concerning prior conduct, “because there was no prohibition on the use of material gained in discovery, and therefore no reason for the Court to inquire about the previous use of said materials.”

Rominger further wrote that the court erred because, according to the Pennsylvania Rules of Criminal Procedure, the court cannot craft a protective order that requires devolution of whom counsel worked or counseled with, nor whom counsel worked with or consulted in relation to any discovery materials that were not previously subject to any protective order.

“The court lacked the power to enter a protective order which included provisions requiring counsel to divulge and describe how they had handled the discovery materials and who they were shared with when there was no hearing where such a finding could be made (if arguendo permissible), and there was no agreement or stipulation entered into such a provision in the protective order,” the appeal notice reads. “The court erred in crafting a protective order which was one sided, and was not reciprocal upon the Commonwealth, as the matters which do not concern Grand Jury materials are not in the purview of the Grand Jury Judge, and to the extent the Court has the power to enter such an Order, it should have been fully reciprocal.”

Cleland’s order was issued following a revelation that a news organization had obtained a portion of a police interview with one of Sandusky’s adopted children, who, after the case unfolded, accused his stepdad of molesting him as well when he was a youngster.

Sandusky, 68, the former assistant football coach for the Penn State Nittany Lions, was found guilty of 45 of the 48 counts of child sex-abuse against him following a two-week trial last month.

The former defensive coordinator was convicted of sexually abusing 10 young boys during a 15-year time period.

At his age, and considering the number of years he is facing behind bars, Sandusky will most likely live out the rest of his life in prison after he is sentenced, which will likely take place this fall.

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