I have finally gotten a chance to read over the Commonwealth’s proposed findings of facts and conclusions of law and I am not impressed. The filing is 104 pages and 31 claims are made. The filing was made by Jennifer Buck (I assume that Jennifer Peterson may have just gotten married).
I am not a lawyer so I don’t know the fine points of the law, but I do understand common English and her claims don’t make any sense from a plain English stand point IMO. I realize that in a PCRA the burden is on the defendant and the standard is a preponderance of the evidence as opposed to reasonable doubt. I also realize that the only evidence that is valid is evidence of counsel’s ineffectiveness, evidence of prosecutorial misconduct, and evidence of innocence. I believe the burden of proof is that the defense must show that the evidence demonstrates that is more likely than not that given the facts as they are presently known would result in a different verdict.
The decision of whether or not the PCRA is accepted and a new trial is awarded comes down to the judgement of a judge or a panel of judges in the case of an appeal. There only needs to be 1 issue and the defense has identified 33 compelling issues none of which are specious. In the Commonwealth’s response, I can’t identify even 1 claim that convincingly invalidates any of the defense issues. Professor Wes Oliver of Duquesne Law School has stated that Sandusky’s PCRA is one of the strongest that he has seen. Even if Sandusky were to be guilty of everything that he is accused of, he deserves a new trial because he didn’t get one the first go round. On the other hand, I agree with NCIS Special Agent John Snedden that there is no credible evidence that wasn’t subject to manipulation that Sandusky is a pedophile. Based on Snedden’s assessment, Sandusky absolutely deserves a new trial.
The claims that I find are the weakest from the Commonwealth’s perspective are that having Sandusky sit for an interview with Bob Costas was a reasonable and rationale strategy (claim 1), that counsel was not ineffective in connection with Sandusky’s election not to testify after promising the jury that he would (claim 3), that there was no after-discovered evidence that Aaron Fisher, Dustin Struble, and Matt Sandusky underwent repressed memory therapy (claim 10) when there is such evidence in Fisher’s book “Silent No More”, in Struble’s email to Mark Pendergrast, as well as in Matt’s statements to Oprah Winfrey where they all state they recovered memories of abuse after receiving therapy.
Other claims that are weak are that victim statements gleaned from improper and suggestive questioning should not be precluded (claim 11), failing to introduce the tape-recorded statement by janitor Jim Calhoun that he did not witness Sandusky in a shower was not counsel ineffectiveness (claim 12), failing to object to the erroneous character evidence instruction that said guilty when the judge meant not guilty and failing to state that character evidence alone can be a basis for reasonable doubt was not ineffectiveness (claim 17), and failing to introduce the statement Allan Myers made to Curtis Everhart that Sandusky did not ever molest him was not ineffectiveness (claim 18).
In addition, other dubious claims include the ineffectiveness of Amendola in waiving the preliminary hearing and losing the opportunity to question the accusers on their inconsistent statements and have impeachment evidence at trial (claim 27) and failing to interview the victims or witnesses prior to trial (claim 19). Additional dubious claims include failing to file a motion to quash the grand jury presentment based on government misconduct associated with including a known falsehood that Mike McQueary witnessed an anal rape (claim 28), and failing to file a motion to quash the grand jury presentment based on subject matter jurisdiction grounds (claim 29) were not examples of counsel’s ineffectiveness.
The following are the 31 claims, of which 6 are repeat claims, which Buck made:
1. Trial console employed a reasonable and rationale strategy when permitting Sandusky to be interviewed by Bob Costas. (page 3)
2. Counsel was not ineffective by failing to request a mistrial based upon the prosecutors comments during closing arguments. (page 14)
3. Trial counsel was not ineffective in connection with Sandusky’s election not to testify. (page 23)
4. Repeat of claim 3.
5. Repeat of claim 3.
6. Trial counsel was not ineffective in connection with his review of discovery. (page 31)
7. Trial counsel was not ineffective in conjunction with the presentation of Dr. Elliot Atkins. (page 34)
8. The Commonwealth did not violate the dictates of Brady v. Maryland in failing to turn over potential impeachment evidence. Counsel cannot be deemed ineffective to raise issue. (page 39)
9. Trial counsel was not ineffective for failing to present expert testimony that called into question of repressed/false memories (page 41)
10. There is no after-discovered evidence that Aaron Fisher, Dustin Struble, and Mathew Sandusky underwent repressed memory therapy. (page 49)
11. Counsel was not ineffective for failing to file a motion in limine seeking to preclude the use of the victim’s statement to police because they were gleaned by improper and suggestive police questioning. (page 49)
12. Counsel was not ineffective for failing to introduce a tape-recorded statement by James Calhoun. (page 52)
13. Direct appeal counsel was not ineffective for failing to argue that Mr. Calhoun’s hearsay statement was inadmissible as an excited utterance and that Sandusky’s conviction based on this testimony lacked sufficient evidence. (page 54)
14. Repeat of claim 13
15. Direct appeal counsel was not ineffective for failing to argue that Sandusky’s federal and state constitutional rights were violated through the admission of the hearsay statements of Mr. Calhoun. (page 59)
16. Trial counsel was not ineffective for failing to present the grand jury testimony of Curley, Schultz, and Spanier. (page 61)
17. Trial counsel was not ineffective for failing to object to the trial court’s character evidence instruction. (page 68)
18. Trial counsel was not ineffective for failing to utilize the statements of Allan Myers that Sandusky did not molest him. (page 70)
19. Trial counsel was not ineffective for failing to interview the victims as well as Mike McQueary, Calhoun, and Petrovsky. (page 70)
20. Trial counsel was not ineffective for failing to request a change of venue or venire, for failing to investigate juror bias, and for failing to question jurors specifically about the information they had obtained through media accounts. (page 71)
21. Repeat of claim 20
22. Repeat of claim 20
23. Trial counsel was not ineffective for failing to file a collateral appeal from the denial of the pre-trial motion to withdraw. (page 76)
24. Trial counsel was not ineffective in conjunction with remarks made during opening statement to the jury. (page 78)
25. Trial counsel was not ineffective for failing to object to improper opinion testimony. (page 79)
26. Trial counsel was not ineffective for failing to object to the prosecutor’s closing argument. (page 82)
27. Trial counsel was not ineffective for advising Sandusky to waive his preliminary hearing. (page 86)
28. Trial counsel was not ineffective for failing to file a motion to quash the grand jury presentment based on government misconduct. (page 90)
29. Trial counsel was not ineffective for failing to file a motion to quash the grand jury presentment based on subject matter jurisdiction grounds. (page 91
30. Trial counsel was not ineffective for failing to raise a claim that the Commonwealth failed to abide by the Child Protection Service Law (CPSL). (page 100)
31. Repeat of claim 30
http://co.centre.pa.us/centreco/media/upload/SANDUSKY PROPOSED FINDINGS OF FACT AND CONCLUSION OF LAW.pdf
