Cleland is going to be in a real bind with the latest PCRA. JS' team is arguing Clinton County CYS broke the CPSL by running the original investigation(should have gone to DPW due to the TSM conflict). This is actually in the Moulton Report and it mentions the failure to set up a lawfully mandated investigative team of DPW and LE, as mandated by CPSL. They argue the failure to follow the law resulted in the OAG's office ultimately getting the case and convening an unlawful investigative GJ.
PA's child protection agencies strike again.
From Moulton at p 100:
"Had such a team been convened, all interested parties would have been involved in or at least aware
of the initial interview of A.F. This not only might have jump started the investigation but also
would have comported with best practices in child abuse cases. 224"
So Moulton actually argues that the failure may have SLOWED the investigation and that more and better evidence could have been found earlier. Hardly a death knell to Cleland.
Second, have you read the actual PCRA statute? Let me quote for you from 42 PA C.S. 9543 (the PCRA relief eligibility, red highlights Sandusky's main claims):
§ 9543. Eligibility for relief.
(a) General rule.--To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following:
(1) That the petitioner has been convicted of a crime under the laws of this Commonwealth and is at the time relief is granted:
(i) currently serving a sentence of imprisonment, probation or parole for the crime;
(ii) awaiting execution of a sentence of death for the crime; or
(iii) serving a sentence which must expire before the person may commence serving the disputed sentence.
(2) That the conviction or sentence resulted from one or more of the following:
(i) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent.
(iv) The improper obstruction by government officials of the petitioner's right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court.
(v) (Deleted by amendment).
(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.
(vii) The imposition of a sentence greater than the lawful maximum.
(viii) A proceeding in a tribunal without jurisdiction.
(3) That the allegation of error has not been previously litigated or waived.
(4) That the failure to litigate the issue prior to or during trial, during unitary review or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel.
So you must not just determine that one of these things happened, but you also must demonstrate that it made it utterly impossible to adjudicate his guilt or innocence. These are legal standards, not just "man that looks awfully bad" from my wikilawyer point of view.
