Monday, October 19

The New Trial for Jerry "Hail Mary"

 Attorney Al Lindsay struggled to convince the court that the AG-Freeh collaboration had any impact on the verdict, but at least he was right about investigating grand jury leaks. 

Ray Blehar
October 19, 2020, 11:15 AM, EST

The latest attempt to win a new trial for Jerry Sandusky was another Hail Mary pass.

During oral arguments on October 14th, Sandusky's attorney, Al Lindsay, raised several issues, some old and some new, as to why his client didn't receive a fair, but he failed to provide any real argument as to how the new evidence could have changed the outcome of the trial.

For example, Lindsay argued that the diary of Kathleen McChesney confirmed that there was collaboration between the Freeh Group (FG) and the Pennsylvania Office of Attorney General (PA OG) during the investigation.   

He also argued that newly discovered evidence showed that the FG had interviewed one of the Sandusky trial jurors.  

While Lindsay is correct that these things happened, he couldn't explain how any of them would have impacted outcome of the trial and instead fell back on the previously failed argument of a rushed trial.

Judge Olson
So, Mr. Lindsay, one of the important elements that we need to consider in determining whether a new trial is is appropriate with on the basis of after‐discovered evidence is that the evidence that was newly discovered is likely to result in a different verdict. And in this case, even assuming what you say is true, is that enough for us to determine that the diary and subsequent documents is sufficient to show that the verdict would have been different? Or is the evidence so overwhelming, that it would not result in a different verdict?

Atty Lindsay
The question, one of the issues that came out, when you say that the evidence is so overwhelming. One of the disturbing aspects of the diary and the other investigation that we've just done is how this matter was rushed to trial. It's been our position throughout this matter, there are so many things that went wrong in this particular case, but of all the things that went wrong, it was this rush to trial. And it we detail in our motion, the timing of this trial and how significant that was. You actually had a situation which was very unusual Mr. Amendola, and cocounsel, Mr. Romminger, before the trial they had received according to Mr. Amendola 12,000 pages of discovery several weeks before the trial, they petitioned the court to withdraw, stating that we can't possibly defend effectively and it would be a violation of the rules of Professional Conduct to proceed and they wanted to withdraw and the judge said no, and so they went to trial. Mr. Amendola correctly said that whatever no lawyer, Mr. Amendola suggests, could have possibly defended this case of this magnitude with the time limitations put on by the court.

Of course, that argument was raised in prior appeals and was defeated or otherwise inappropriate to be argued again -- as the court noted:

Judge Bowes
I know so it hasn't that hasn't that already been before this court?

Atty Lindsay
It has to this extent, it was raised. It was raised by prior appeal. But it was dismissed on ineffective assistance of counsel, because there was a question asked on the Post Conviction Relief Act hearing, Mr. Amendola said, Would he have done anything differently if he had more time? And he said no, so that the Superior Court just threw that particular issue out, even though Mr. Cleland said it was a
good issue.

Judge Bowes
So, counsel, your time is running low. I just want to give you that heads up. You still have your rebuttal time on top. You have a couple minutes left.

Atty Lindsay
Well, I just think that the allegations that we've raised are are new. They're very, they're very grave. I think they're very, very, very, very important. And it deals with the grand jury, the grand jury leaks, the abuse, It also deals with the fact that there was this collusion between the Attorney General's Office and the Freeh people. I think I'll save up my my rest of my argument for rebuttal.

Again, Lindsay argues that new evidence and allegations are grave and very important, but he didn't articulate to the court how they would have impacted the trial or the verdicts.

The only good points that he made were regarding how the Pennsylvania justice system seemingly has no appetite to investigate grand jury abuses. 

Atty Lindsay
...I'd like to address something. I think it's really important what was raised by the Attorney General, and that is we have these allegations without specificity. And of course, the answer is, Yes, we do. Because we don't have subpoena power. This matter should have unquestionably been referred to a special prosecutor.The issue was in the Kane case, which is 35th statewide investigating jury, the Supreme Court of Pennsylvania said when there are colorable allegations or indications that the sanctity of the grand jury process has been breached those allegations warrant investigation and the appointment of a special prosecutor to conduct such an investigation is appropriate. In this particular case, there are significant colorable allegations the first of all, there was sufficient colorable allegations that the original grand jury judge, Judge Feudale, appointed special prosecutors, those special prosecutors according to doctor Feudale said that the attorney general's office was not cooperating with them, and so they didn't do anything. Then in this particular case, the bizarre aspect of one of the many bizarre aspects is that the court accepted the testimony of Frank Fina at trial that they conducted a sting operation because they were well aware that there were leaks coming out of the Attorney General's office. That is more evidence that there was colorable allegations of leaks. We raised the allegations of leaks. We petitioned the grand jury judge to appoint a special prosecutor. It was denied. We in the course of this investigation, we requested the opportunity to subpoena the reporter Sarah Ganim, who received the one leak and Judge Cleland indicated that that would be appropriate in the event that we could show that quashal was a legitimate end of Grand Jury abuse. And so we produced that evidence and produced the cases. And of course, the most significantly are the Schultz case, Curley case, and the Spanier case, which were decided by this court....

Judge Bowes
Mr. Lindsay, I hate to interrupt, but I just want to keep our focus on the issues that are before us. And I know this is a complicated matter. And it's been subject to numerous appeals. We're all aware of that, but are what you're talking about now, is that related to what you are seeking in terms of relief at this point in time? diary,

Atty Lindsay
Absolutely. In other words, I can't go out and get these individuals who are involved to talk to me to give me affidavits, and so forth. So the Commonwealth out of one side of their mouth, says he should have brought these witnesses in and told them what they say. I don't have subpoena power. The whole purpose of having this hearing is so that we can bring in the author of the diary. Is this legitimate?  So that's why we asked for this hearing for it's a process that should have been conducted by a special investigator special investigation. But, you know, it's been that I for reasons which are incomprehensible as to why we have not gotten that investigation, I should not be the one doing this. This should be a special prosecutor doing this. But since this, since no one will allow us to have a special prosecutor appointed, we asked for the opportunity to do that, to bring in witnesses to subpoena them concerning this virtual gushing of Grand Jury leaks.

So, at the end of the day, Lindsay made the argument that a hearing was needed so that Kathleen McChesney could confirm the authenticity of the diary and, in doing so, confirm that secret grand jury information was being shared between the FG and the PA OAG.

But still no nexus between the leaks and the trial verdict. 

The court correctly pointed out that Freeh was hired after the grand juries concluded their investigations of the Sandusky's sexual victimization of children.   Moreover, the Freeh Report was published after the Sandusky trial concluded, thus it didn't impact the verdicts.

The fact of the matter is that the most obvious issues of misconduct during the Sandusky trial have never been raised by his legal defense teams.

Instead, they are throwing Hail Mary passes.


  1. MANY people still believe that the evidence against Sandusky was circumstancial at best, and in some instances flew in the face of direct "victim" testimony. JoePA was certainly the sacrificial lamb in the political hot potato game played out during this sad episode in PSU history. The last 3 yrs have shown any person with an open mind that the FBI was not, and is not above playing fast and loose with facts, and playing politics.

    1. U,
      Thanks for your comments.

      It is true their was no DNA or other direct evidence proving that Sandusky had sex with victims. That said, Sandusky's own admissions of being in bed with boys, rubbing them, blowing raspberries on their stomachs, showering with them, and other inappropriate conduct was, in fact, consistent with victim testimony. As such, the jury had a relatively easy time deciding his guilt. According to the jury foreman, only Victim 10's testimony was problematic.

      I am on record that Victim 10 fabricated his story, as well as on record that the janitor incident was a hoax.

      You are correct that the PA government used the name of Joe Paterno and Penn State football to deflect attention away from the underlying issues that enabled Sandusky to perpetrate his crimes.

      You are also correct that the FBI -- and in this case, Louis Freeh -- has often tampered with evidence in order to achieve the desired end result.

      Thanks for reading the blog!