Jerry Sandusky lawyers ask for a retrial. Do they have grounds?

The legal team for convicted pedophile Jerry Sandusky argued Tuesday that he didn’t receive a fair trial because of an ‘adverse comment’ by the lead prosecutor in his closing statement, among other things.

Mark Moran/ The Citizens' Voice/ AP Photo
Norris Gelman, an attorney for former Penn State assistant football coach Jerry Sandusky, leaves a news conference following an appeal hearing before justices from Superior Court at the Luzerne County Courthouse in Wilkes-Barre, Pa., Tuesday, Sept. 17, 2013.

Attorneys for convicted pedophile Jerry Sandusky are asking a Pennsylvania court for a retrial, saying their client did not receive a fair trial because of alleged errors made in the courtroom and a burdensome workload they say did not allow them an adequate amount of time to prepare.

The hearing on the matter took place Tuesday afternoon before a three-judge panel at the Luzerne County Courthouse in Wilkes-Barre, Pa.

In October 2012, Mr. Sandusky was sentenced to serve 30 to 60 years in prison based on 45 counts of molesting 10 boys while he was an assistant football coach at Penn State. He continues to say he is innocent.

Sandusky’s legal team wants to persuade the state appeals court that a new trial is needed because of an “adverse comment” made by lead prosecutor Joe McGettigan in his closing statement regarding Sandusky’s decision to not testify. In the lawyers’ court filing, they say the comment undermined their client’s right to not incriminate himself, and they added that the comment – suggesting Sandusky was more interested in conducting television interviews than in testifying under oath – created prejudice among the jurors.

The defense argument is “potentially troubling” for the prosecution, says Richard Frankel, a law professor at Drexel University’s Earle Mack School of Law in Philadelphia.

“It’s very common for defendants to not testify because it will open themselves to any questions in the cross-examination,” he says. It may be hard to know if jurors were aware of the Sandusky television interviews, but even if they were not, “it’s hard not to take into account” Mr. McGettigan’s comments.

Two other procedural issues that were brought up in filings: preparation time and jury instructions. Defense attorneys said the amount of time they had to prepare their case – less than five months – was too slight in light of the number of counts and alleged victims involved, as well as the 12,000 pages of documents to review as part of pretrial proceedings.

That defense argument, according to Professor Frankel, could have limited effectiveness because appeal courts are likely to defer to the decision of the presiding judge, John Cleland.

“The appeals court is less likely to tread on the trial judge’s discretion because [that person has] a better sense of how long it’s going to take to put up a defense than after the fact. They’ll give the judge a substantial amount of latitude,” he says.

The defense team also says that Judge Cleland failed to emphasize in instructions to the jury the time it took for victims to report the alleged abuse. In four cases, that time frame was more than 11 years.

Sandusky did not attend the hearing. He is currently at SCI Greene, a maximum-security state facility in Waynesburg, Pa.

A ruling on the arguments by the three-judge panel is not expected for months.

The Sandusky scandal rocked the powerhouse Big 10 football program, leading to the firing of legendary coach Joe Paterno as well as probes into whether top-ranking university officials perpetrated a coverup spanning many years.

Three former officials – University President Graham Spanier, Vice President Gary Schultz, and athletic director Tim Curley – were charged this summer with perjury, child endangerment, obstruction of justice, endangering the welfare of children, and failure to properly report suspected abuse. Their trial is expected to take place next year.

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