Monday, February 25

Sandusky's "Hail Mary" is Brady

Jerry Sandusky's attorney will use Brady violations in long-shot request for new trial

Ray Blehar
February 25, 2019, 9:08 PM, EST, Updated 9:40 PM EST

In a small meeting room at the Country Garden Inn of State College,  Sandusky's defense attorney Al Lindsay stated he would utilize Brady violations by the Office of Attorney General (OAG) as a means to get a new trial.

Lindsay was the headliner of a panel that included former NCIS Agent John Snedden, independent author/blogger Ralph Cipriano of BigTrial,net,  and former Penn State University assistant football coach Dick Anderson.  The panel was emceed by WRSC radio's Jeff Byers -- a friend and ardent supporter of the Sandusky family. 

While Lindsay appeared not to have a complete strategy in place at the moment for his request to the Pennsylvania Supreme Court, he offered that in order to win a new trial he had to prove that judicial precedence was violated at the June 2012 trial.   Brady v. Maryland requires that the prosecution must turn over all exculpatory evidence that might exonerate the defendant. 

Lindsay argued, and won, that Brady was violated in Sandusky's Post Conviction Relief Appeal (PCRA).  Specifically, he argued that the interview notes showing that the accusers had changed their stories several times prior to trial should have been part of discovery for the case.   

Even though he won on that specific argument, the Superior Court argued that the violations were not significant and that Sandusky's trial attorney was able to use the new/different testimony from the witnesses in an effort to impeach them. 

Winning a decision for a new trial based upon the Brady violations could be a long-shot. 

At the press conference, Lindsay did not cite any specific victim testimony that changed, however, the trial transcripts reveal that only Victim 7 (V7) had material changes to his testimony from the grand jury to the trial.  In that instance, V7 changed his story from Sandusky only attempting to touch his private parts to actual touching (i.e., indecent assault).   That change, however, did not result in additional charges and Sandusky was convicted for attempted indecent assault.  The only other material change from grand jury to trial was testimony from janitor Ronald Petrosky, who changed the location of the crime.  

Petrosky, however, was not alleged to have undergone therapy to change or recover his memories -- as Lindsay alleges others did.  

The remaining arguments raised by Lindsay at the press conference were simply rehashes of arguments raised in the PCRA that were defeated because they had little factual basis or were of little relevance to the outcome of the Sandusky trial.  That said, one of his most compelling arguments concerned how trial attorney Joe Amendola turned over the cross-examination of Mike McQueary to co-counsel (and now convicted embezzler) Karl Rominger.  Rominger had just 30 minutes to prepare and failed to diminish McQueary's credibility.

Lindsay vowed a thorough examination of McQueary's many versions of events if a new trial was granted.  

After Lindsay's presentation, retired agent John Snedden took his turn at the microphone reading from a prepared statement.  The most interesting aspect of his presentation was that one of the OAG's narcotics agents demanded he turn over the Background Investigation report he conducted on former PSU president Graham Spanier.  Snedden related that when he refused, the agent went on a profanity laced tirade and informed him that the OAG would subpoena the information.  

And that's what happened.  However, the OPM, as a federal agency, has sovereign immunity and did not turn over the report. 

Cipriano's presentation focused on the settlement of claims related to the Sandusky case.  36 claims totalling $118 million was paid without any verification whatsoever.   Cipriano mentioned that, based on a discussion with an investigator, many red flags of fraud were present.    The most interesting part of his presentation came when he discussed the 2004-2008 medical records of Sandusky that claim that the convicted child molester had atrophy of the testicles (i.e., small balls) and could not have performed sexually.

During the question and answer session, I asked why the medical records weren't used at the trial or in the PCRA appeal?   Lindsay noted that he received the records after he had submitted his appeal.  

I countered that obviously Jerry knew he had this medical condition so why wouldn't he have brought it up at the trial?  The question has met with head nodding and laughter, even among the panel members.   

Lindsay weakly opined that Sandusky may have felt he could have won without bringing it in as evidence.   When pressed about using the medical records in a new trial, Lindsay was non-committal.

Interestingly, Lindsay, in his opening remarks about Jerry's innocence, stated that Sandusky couldn't have been a Pillar of the Community pedophile because those individuals are dishonest and conniving.  Comparatively, he called his client an "open book."

Lindsay was on the case since June 2014 and submitted the PCRA on May 6, 2015.   His "open book" client never told him about his medical condition during that time.  

As the title of this post says, the request for a new trial is the football equivalent of a "Hail Mary" pass.   In Pennsylvania's Kangaroo Court system, legitimate arguments for appeals, disciplinary actions against prosecutors, and requests for new trials are routinely denied based on sometimes ludicrous reasons.

Should Lindsay somehow prevail and get a new trial, the result will likely be the same if he continues to use the same failed arguments.  However, one good thing that will come out of the new trial is that Mike McQueary will finally get the cross-examination that he should have gotten at Spanier's trial.  


  1. If Lindsay feels that a Brady violation occured, he should file a Habeas Corpus plea in Federal Court. Once this is in Federal Court, all hell might break loose.

    1. Gregory,
      Thanks for your comment.

      As I wrote, the PCRA ruling confirmed Brady violations but deemed the issue not significant because Amendola used the new/changed testimony in cross-examination. The Supreme (Kangaroo) Court in PA will likely follow suit -- though it did grant a new trial in the Monsignor Lynn case (about EWOC).

      You are correct that Lindsay could win a Habeas Corpus ruling in Federal Court. That is the best bet here.

  2. What about the evidence that the date of the alleged assault witnessed by Mike McQueary was not Feb. 9, 2001 but weeks earlier? Couldn't that he used to impeach his testimony?

    You had an article discussing how McQueary's claim that the campus was not deserted that night was false because a Barenaked Ladies concert occurred on campus.

    If the 2001 shower incident was actually weeks earlier that means McQueary did not go to Paterno immediately but waited until Paterno had a job opening and his report of the incident was a excuse to talk to Paterno about the job. Even Paterno immediately suspected that McQueary phoned about the job because McQueary testified that the first thing Paterno told him on the phone was that he had no job for Mike. Wide receivers coach, Kenny Jackson, was hired to coach for the Steelers on Feb. 8. That was the day after National Signing Day.

    So much for McQueary's testimony that the week of the shower incident was an uneventful week that he believed was spring break.

    1. Tim,
      Thanks for your comment.

      The theory that the shower incident occurred in late 2000 is NOT backed by reliable evidence. That date was determined by one non-fact and unreliable information based on the non-fact.

      Non-fact: AM is the shower victim.
      Unreliable: Jerry recalled December 30, 2000 as the last time he worked out and showered with AM.

      Next, it would be of great risk to McQueary to go to Paterno and report seeing Jerry in the shower at 9-10 PM that Friday night unless McQueary was certain Sandusky was there at that very moment.

      Sandusky confirmed that he was there when Tim Curley asked him and the date and time was not contested when it mattered most -- at the trial.

      If a new trial was granted, Al Lindsay could definitely throw doubt on the credibility of what he saw and remembered about the incident given all we know today. However, to get the date fixed to December 30, 2000, he would have to get AM to cooperate and that is highly unlikely given his non-cooperation at the PCRA hearing.

    2. If McQueary was lying to Paterno about the date then he was already taking a great risk so he might not have thought that Sandusky might have an alibi for the evening of Feb. 9. McQueary doesn't seem like the sharpest knife in the drawer based on his actions on Feb. 9 and his testimony.

      Would the defense have to fix the exact date or just raise serious doubts that it was actually Feb. 9? McQueary said he thought it was spring break and the campus was deserted. It was not spring break, and there was a big concert on campus that evening.

      The campus would have been deserted for winter break back in late Dec. and the first part of January.

      The OAG, Sandusky and Freeh didn't do much of an investigation and questioning of McQueary. One of the only pieces of physical evidence in the shower incident was McQueary's pair of new shoes. Was McQueary ever questioned about where and when he bought them? Did they try to get his credit card receipts or look for photos of McQueary from that time period that would show him wearing the shoes?

      Are there any satellite photos of the Penn State campus for the period Dec, 2000 to Feb. 2001? Maybe they would show Sandusky's car or McQueary's car in the Lasch building parking lot on Feb. 9 or the lot filled with cars of the concert goers. Maybe they would show the lot empty at the time McQueary said he was there.

    3. Tim,
      Thanks for your questions.

      My take is that the prosecution could NOT have made a case without setting the exact date UNLESS it had a victim to corroborate McQueary's account AND that there were multiple episodes of victimization. A single allegation, in my opinion, needs a fixed date in order for the defendant to be able to mount a defense.

      You are correct that everyone involved in the Sandusky case and related cases did a piss poor job researching the shower incident. I have lamented the fact that no one did a test to see how quickly the mirrors would have fogged over. Also, credit card records for McQueary should have been pulled to verify a shoe purchase -- and perhaps his bar tab for that afternoon/evening. An attempt should have been made to see if PSU's phone records showed his call that Friday night.

      I have a lot of experience with the satellite industry and back in 2000/2001 the U.S. commercial satellite industry was only 3 companies (Earthwatch, Space Imaging, and Digital Globe) who flew electro-optical (strictly day time) images. They would not have shot images at night.

    4. My take is that the Feb. 9 data was a Sassano invention. He did purchase all of those TV guides to find "Rudy", didn't he? The Bare Naked Ladies AND a hockey game at the Lasch building on Feb. 9. Makes you wonder! JS traveled to Virginia with ex Indianapolis Colts head coach Jim Caldwell after Christmas with Alan Myers in tow, then went to "Warshington" PA for a book signing. It makes sense that the workout with Alan was on the night of the workout. I'm surprised that Caldwell was never deposed.
      I remain skeptical that JS abused any of those boys and am rather put off by the implicit assumption of guilt in your blogs. My skepticism is based on the following data: 1. Multiple investigations were done for the Sandusky's to adopt children. These are very rigorous investigations. Investigators and case workers found nothing negative. 2: No pornography was found. 3. The extraordinary and possibly illegal interrogation techniques used by police and prosecutors. 4. The objective lies and hoaxes used by the OAG including suborned perjury. 5. Ever changing stories by "victims" which were obviously scripted by civil attorneys to get money. 6. Use of a quack repressed memory therapist. 7. The fact that the totality of the claims of the "victims" are impossible in both time and space. 8. JS's clinically significant hypo testosterone would make many of the things he was accused of impossible and was possibly responsible for inhibited developmental neurochemistry.

      I also note that many of the things that JS did with the kids was not unusual in the 1980s and 90s. Todd Blackledge had a well documented relationship with a Second Mile kid and took him on out of town trips. Ditto for a lot of PSU students who were working with Second Mile kids for academic credit. I just can't see anything that stands out as abusive behavior.

    5. Spot on Gregory. I think that Ray is dead wrong when he states that AM being the boy in the shower is a non-fact. Ray has done some excellent research in the non-scandal. His key shortcoming imho is his inability to acknowledge that the case against Sandusky just isn't that strong. I am glad that he attended the press conference held by the Sandusky defense that demonstrates to me that Ray realizes that the narratives that were spun by the OAG to convict Sandusky have some gaping holes in them.

    6. Gregory,
      I am very skeptical that Sassano bought more than ONE TV Guide. The OAG already knew the date and they were retro-fitting. As I wrote, if he was purchasing TV guides for Spring Breaks, they begin in March...not early February.

      According to a January 2011 CDT column, Sandusky "vividly" remembered the incident was sure it happened in 2001, "probably in February."

      As for your arguments:
      1) PA CYS is a complete mess and has been for years. They had a dozen signs of possible sex abuse told to them in 1998 and blew it.

      2) The majority of ON LINE child sex offenders do not possess pornography. It logically follows that those who do not meet their victims on line would be less or the same.

      3) The idea that suggestive questioning was used in the case of Victim 4 is based on an excerpt of the tape recorded interview. The full tape recording, however, tells a different story. V4 admitted that Sandusky placed/rubbed his exposed genitals on his (V4's) face while they wrestled around. After V4 went for a smoke break, Leiter told him about other victims who had been subjected to oral sex. V4 then admitted it happened. This was a case of incremental disclosure, not suggestive questioning.

      4. The hoaxes in the case were purely for going after PSU, not Sandusky.

      5. There weren't significant changes in testimony from the grand jury to the trial. The changes happened during the PSU settlement process, and I agree that the civil attorneys (Shubin, et al) made a lot of the stuff up.

      6. RMT didn't happen in this case. The argument that it did failed miserably -- along with expert witness Dr. Elizabeth Loftus.

      7. The admissions that V1 and V9 were spending all those weekends at Jerry's house over the same time frame is problematic for sure. I suspect one or both exaggerated the frequency. As for the rest, you basically have long term victims spanning brief periods of time that don't overlap and then a few single incidents. Those timelines work.

      8. The medical report, if true, is compelling evidence only that he didn't anally rape someone. He could still perform oral sex on children and vice-versa -- and commit indecent assault. My take originally on Jerry (under the influence of FALSE REPORTS about Aaron Fisher by Sara Ganim) was that Jerry was a fondler, but didn't penetrate anyone. However, once I determined she was lying in 2013, my opinion changed and I was convinced oral sex was involved. I do not believe he forcibly anally raped V9 or anyone else. That wasn't how he or other offenders like him operate.

    7. Steve,
      Thanks for your comment.

      I described Monday's press conference to a friend as "the circus is coming to town." I was in Pennsylvania on another matter on Saturday and had a meeting in Harrisburg on Monday at 3PM. It was convenient for me to stop in and see if there was anything new announced.

      There wasn't. Same old weak, tired arguments that failed in the PCRA, including that tired argument that the OAG knew AM was Victim 2.

      The case against Jerry could have been much stronger, had the OAG actually investigated the case instead of sitting on their backsides for two years. Regardless, they only presented witnesses who would either "incriminate" PSU or say they were raped. Other kids from Lock Haven that they knew about weren't included in the trial -- but could have been.