The stupid ones are those who continue to lack the ability to look at this case dispassionately.
Injustice is injustice. Do you deny that multiple attorneys have been sanctioned over their roles in this mess? Do you deny the state police perjured themselves in court? Do you deny the judge made some mind boggling rulings in this case?
If you think all of those things adds up to "justice", then I hope your job isn't any more complicated than picking stones.
Not so simple.
In their motion for a new trial, Sandusky's lawyers say they have "recently received information regarding actions taken by attorneys representing individuals who have accused defendant of abusing them. Based upon that information, defendant asserts herein that certain actions taken by said attorneys would likely have affected the court testimony presented by alleged victims, and may also have had a significant effect upon decisions made by the jury in this case."
On June 7, 2011, a state trooper interviewed alleged victim No. 5, referred to by Sandusky's lawyers by his initials, "MK."
Michal Kajak, who got involved with Sandusky's Second Mile charity in 1996, initially claimed that he was sexually abused in the shower by Sandusky during the 1998 football season. According to Kajak's testimony at the Sandusky trial, he maintained that the shower incident occurred during the1998 football season in the East Area locker room, when Kajak was 10 years old.
On November 30, 2011, an individual identified as “John Doe A” filed a civil proceeding against The Second Mile and Penn State University, after which Penn State forwarded the claim to its insurer, the Pennsylvania Manufacturers Association [PMA].
"On May 17, 2012, MK changed the date of alleged abuse to August, 2001, and the location was also changed to the Lasch Building locker room," Sandusky's lawyers wrote.
"As noted below, by this time, Penn State’s settlement subcommittee had adopted criteria for consideration of settlements of civil claims in which claims beginning in 2001 and later would receive the highest settlement offers," Sandusky's lawyers.
On July 12, 2016, The Philadelphia Inquirer reported that Penn State had agreed to pay $93 million to more than 30 of Sandusky's alleged accusers. In the same article, the newspaper reported that PMA was "challenging the assertion that it should cover these payments," Sandusky's lawyers wrote.
"An expert hired by the company reported that: 'It appears as though Penn State made little effort, if any, to verify the credibility of the claims of the individuals.' ”
This is an understatement, as I previously documented in a story headlined
Easy Money at Penn State, which chronicles how the Penn State trustees passed out $118 million to 36 victims, with virtually no questions asked.
https://www.bigtrial.net/2018/08/easy-money-in-sandusky-case-penn-state.html
In their motion for a new trial, Sandusky's lawyers state that Kajak was represented by "a highly respected and recognized civil attorney." According to Sandusky's lawyers, that attorney, who is not named in the motion, "made ongoing public statements expressing his opinions of the evidence" in the Sandusky case.
Kajak's attorney who appeared on TV was noted Philadelphia lawyer Tom Kline, who did not respond to a request for comment.
On Dec. 10, 2011, Sandusky's lawyers say, Kline commented on TV about what might happen at a preliminary hearing in the Sandusky case.
“You will see at this hearing many victims testifying about a pattern of conduct, which occurred over a long period of time and was predatory in nature," Kline said, according to Sandusky's lawyers.
When Sandusky's trial began on June 18, 2012, according to Sandusky's lawyers, Kine appeared on TV again and stated that he was not impressed by Sandusky's defense.
“If this is what we are having to preview as to the strength of the defense, I am not overwhelmed, and I think it was really not a very strong beginning," Kline stated.
The next day, on June 19, 2012, Kline told the media that two defense witnesses did not do the defendant any favors.
“There was an odd and bizarre attempt to convince the jury somehow that showering [with kids] is culturally accepted in this world. I don’t see how that takes anyone very far," Kline was quoted as saying.
On that same day, Kline also defended what Sandusky's lawyers described as "suggestive questioning of the accusers by law enforcement."
“I think it was perfectly appropriate for a trooper with a reluctant witness, an investigator with a reluctant witness, especially in the face of sex crimes that were done to children when they were young to suggest, look, you don’t want to talk about this, you should know you’re not alone," Kline said.
In their motion for a new trial, Sandusky's lawyers quote the Pennsylvania Rules of Professional Conduct, specifically Rule 3.6, as stating:
“A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be [disseminated] by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”
"It is readily apparent that [Kline] had participated in the investigation of this matter, and had actually participated briefly in the litigation by filing in the criminal proceedings a motion to preserve the confidentiality of the identity of his client in those proceedings on May 29, 2012," Sandusky's lawyers wrote. "Accordingly, his conduct was governed by that rule."
"It is clear that counsel commented multiple times on the credibility of witnesses, and made clear his opinion as to the guilt or innocence of appellant, in these recordings and in other statements made to media and/or publications," Sandusky's lawyers wrote about Kline.
"The propriety of counsel’s conduct in this matter is not the issue that must be addressed," Sandusky's lawyers wrote. "Rather, the issue is whether, given the statements made by counsel, the violation of this rule, and the clear indication that, in a proceeding of this type, those violations 'are more likely than not to have a material prejudicial effect' on the proceeding," Sandusky's lawyers wrote.
On Sept. 4, 2013, Kajak's claim against Penn State was settled for $8.1 million.
In their motion for an evidentiary hearing, Sandusky's lawyers seek to question Kline about "the nature and extent to which counsel for MK made statements to media or publications prior to, or during, appellant’s trial in these cases."
Sandusky's lawyers also want to question Kline about "The nature and extent to which counsel for MK participated in the investigation and preparation for the criminal proceedings in which [Sandusky] was defendant."
Sandusky's lawyers also want to convene an evidentiary hearing to determine: "The precise relationship between the criminal investigation, the Freeh investigation, the settlement committee created by PSU, [and] the Office of Attorney General, and attorneys representing alleged victims," Sandusky's lawyers wrote.
"It has been alleged by [Sandusky] in pretrial motions and thereafter that his accusers/alleged victims have communicated with each other throughout the course of the investigation conducted by the Office of Attorney General, and that his accusers/alleged victims have changed their testimony over time in ways which would enhance their civil claims against Appellant, Penn State and others," Sandusky's lawyers wrote.
"If, as previously alleged by defense counsel, the accusers/alleged victims communicated directly with each other, or through counsel, and if their description of what occurred, and where and when it occurred, was changed by them in ways which would enhance the value of their civil claims, and if their counsel tolerated or encouraged such changes, the evidence presented to the jury would have been false and misleading, and a new trial would be warranted," Sandusky's lawyers wrote.
An alleged victim peddles a fictitious story of abuse to attorney Andrew Shubin
In their motion for a new trial, Sandusky's lawyers extensively quote A.J. Dillen, a witness who appeared on reporter John Ziegler's April 21st podcast, "With the Benefit of Hindsight."
Dillen was a former Second Mile participant who met with Andrew Shubin, a State College lawyer who represented nine alleged victims of Sandusky, and did not respond to a request for comment.
On the podcast, Dillen said he went to see Shubin "pretending to be a victim of Sandusky." According to Sandusky's lawyers, Dillen told Shubin "a fictitious story about being raped by Sandusky in the park area immediately behind Coach Joe Paterno’s house."
According to Dillen, over a three-year period, as he repeatedly met with attorney Shubin and a therapist, they refined Dillen's story of abuse so that Dillen would have a better shot at getting paid.
"Dillen met with this attorney multiple times over a period of three years regarding his purported claim," Sandusky's lawyers wrote. "During a number of these meetings, Dillen recorded what was being said with the consent of the attorney."
"In his second meeting with this 'victim,' while being recorded, the attorney read back a different story, changing the number of attacks, and the location of the attacks to the Penn State showers," Sandusky's lawyers wrote.
"He [Shubin] also stated that Dillen had reported the abuse to Penn State officials, who didn’t believe him," Sandusky's lawyers wrote. "None of those new facts were stated by Dillen in the initial interview, and none were true, but all of them would increase the value of any civil proceeding on his behalf."
"Thereafter, the attorney referred him to a mental health counselor, who, according to Dillen, met with him approximately 100 times," Sandusky's lawyers wrote. "Dillen also recorded certain of the interactions with that counselor as well."
"During his sessions with the counselor, a number of which were recorded, Dillen indicates that he was subjected repeatedly to repressed memory therapy, a process that the prosecution in this case denied using on alleged victims," Sandusky's lawyers write.
In an evidentiary hearing, Sandusky's lawyers say they would like to question Shubin about "the nature and extent to which counsel for A.J. Dillen made changes to the information provided by Dillen, including changes to the location and nature of the abuse he claimed, and the nature and number of the occurrences of abuse."
Sandusky's lawyers also want to know: "The nature and extent to which counsel for A.J. Dillen made changes to the information provided by other accusers who had consulted with him, including changes to the location and nature of the abuse he claimed, and the nature and number of the occurrences of abuse."
And: "The extent to which counsel for A.J. Dillen shared the existence of any changes in any accuser’s reporting of alleged abuse" by Sandusky, his lawyers wrote.
Recovered memory issues resurface
Sandusky's lawyers noted that in previous appeals, the courts have accepted the testimony of therapists in the Sandusky case who denied using repressed memory therapy, which is banned in some states, and not accepted by other courts as evidence.
But "in treating A.J. Dillen," Sandusky's lawyers wrote, "the therapist at one point states:
“We are talking about why you repressed or hid these memories. I think that people do repress memories and that people don’t really think there is a whole continuum of what that means. Sometimes it means they totally forget and it is not in their consciousness at all until something happens sometime in their life… "
"At this end of the continuum, the other side is knowing but not willing to think of it so putting it out of your mind, like what you do with anything unpleasant. But knowing it is there, just not focusing and then there are things in between. This over here on the end is repressed memory. I prefer to use the word disassociation - just means disconnect . . . There are all different ways we disconnect.”
According to Sandusky's lawyers, Dillen asked, “can people disconnect for years?”
“Yes, people can disconnect for years," the therapist replies, according to Sandusky's lawyers.
"They can disconnect from the knowledge, from what happened, they can disconnect from the feelings, from body sensations. Disassociation happens when you are in a situation that is beyond what is normal… A person can forget about it, and then something happens. A little like a light coming through a window can trigger the memory after years and years. And suddenly they are 'what the hell is happening…' ”.
According to the podcast, Dillen told the therapist that he blamed himself for not remembering the abuse.
“You’re not crazy because you didn’t remember it," the therapist replied. "It’s the way we deal with overwhelming trauma… Psychological defenses… Kick in automatically. It’s part of your brain that deals with that (compartmentalization). When you’re young you tend to forget. I have talked to quite a few guys that were abused by Sandusky, and this is the case with most of them.”
"This therapist met with Dillen weekly for three years, and had him attending multiple group meetings, despite well-accepted principles, which will be articulated by Defendant’s expert witness, Dr. [Elizabeth] Loftus, to the effect that the combination of the suggestive questioning, the use of repressed memory methodology, and the presence of regular group meetings with others making similar claims," Sandusky's lawyers wrote.
"As a result of the foregoing, the trial court should be given the opportunity to hear testimony and evidence on the allegations set forth herein, listen to the podcast referenced herein, and determine whether PCRA relief was improperly denied and should now be granted, whether any of the accusers subjected to repressed memory should be deemed incompetent to testify . . . and whether a new trial should be granted based on this after discovered evidence," Sandusky's lawyers wrote.
The subject of the use of recovered memory therapy at the Sandusky trial was the subject of
The Most Hated Man In America; Jery Sandusky and the Rush to Judgment, a 2017 book written by Mark Pendergrast, which was excerpted on
bigtrial.net.
Finally, the Honorable Senior Judge John C. Cleland
No investigation into the legal travesty that was the Sandusky case would be complete without interviewing Judge John Cleland, who presided over the media circus known as the Sandusky trial, which attracted 240 reporters and 10 TV trucks.
Nine years later, I'm the only reporter left in North America who thinks the Sandusky case might still be a story. Especially since the first time around, they may have gotten everything completely wrong.
If only Sandusky were a black transexual, the social justice warriors at The Philadelphia Inquirer and other mainstream media outlets might be interested in his case, especially because of the overwhelming evidence of official misconduct and the trampling of a defendant's constitutional rights during every phase of the investigation, prosecution, and trial of Sandusky, not to mention the appeal process that's been willfully blind to all those abuses.
But alas, since Jerry's an old Protestant white guy who might have been completely railroaded by overzealous prosecutors, amateur detectives, quack therapists, tainted judges, lobotomized university trustees, brain-dead reporters, opportunistic "victims" and their greedy lawyers lining up for a big pay day, nobody gives a rip.
In their motion for a new trial, Sandusky's lawyers state that they want to interview Judge Cleland about the events of Dec. 11, 2011. That was the night before the preliminary hearing in the case, when Judge Cleland convened a highly unusual meeting with both prosecutors and defense lawyers at the Hilton Garden Inn.
At the preliminary hearing, Sandusky's lawyers would have had their only chance to confront Sandusky's accusers, the eight young men who would claim at trial that Sandusky had abused them. But Amendola, Sandusky's trial lawyer, testified that if he didn't agree to waive the preliminary hearing, the attorney general's office had made it clear that they were going to seek bail for Sandusky in the vicinity of $1 million.
www.nbcphiladelphia.com
