Where are we? The last major flurry of activity occurred in early-December, just a month after the grand jury presentment was leaked and Jerry Sandusky was first arrested and charged with forty-plus counts of child sexual abuse between 1994 and 2009. As we discussed here, Sandusky was once again arrested and charged with twelve other counts based on new grand jury testimony from two additional victims.
Sandusky's preliminary hearing was scheduled to take place on December 13th. Faced with the prospect of eight of the alleged victims testifying in open court, Sandusky, through his attorney, Joe Amendola, waived his right to a preliminary hearing. Days later, the preliminary hearing for perjury charges against Tim Curley and Gary Schultz took place in Dauphin County. After three hours of testimony, including the first extensive public appearance by former Penn State
quarterback receivers coach Mike McQueary, District Judge William Wenner ruled that the evidence against the embattled Penn State administrators was sufficient to allow the case to proceed the trial.
It's called disclosure. For several months, it probably appeared to the general public that the cases against Sandusky, Curley and Schultz had stalled. Aside from the Penn State Board of Trustees' stubborn insistence on issuing inane statements that only serve to keep perhaps the biggest scandal in the modern history of American higher education on the front page, all remained generally quiet. Internally, the parties engaged in discovery (or disclosure, as it's known in some states); Amendola served more than forty subpoenas "to various agencies, institutions, entities and individuals to produce records and information relating to the defendant's cases." He also served a Bill of Particulars and filed several motions to compel discovery, requesting certain facts and documentation from the prosecution. The prosecutors responded as directed by court order.
What's happening now? It's no surprise that the pace has once again picked up as we approach the June 5th trial date. Predictably, Sandusky's defense has argued that the prosecution has failed to supply all the information it has requested in its discovery requests, which has led to motion practice in front of the presiding judge. On May 9th, Amendola filed a ten-page motion to delay the start of the trial, asserting that his team is waiting for more documentation from the prosecution and needs the more time to prepare an adequate defense.
The motion also sought to delay the trial due to the "unavailability" of Curley and Schultz's testimony. Of course, Curley and Schultz aren't "unavailable" in layman's terms. Rather, they are legally "unavailable," because they would both avoid testifying by invoking their Fifth Amendment rights against self-incrimination. Amendola presumably would use Curley and Schultz to impeach the credibility of McQueary, the prosecution's star witness.
On May 16th, just one week later, Amendola filed a separate motion, seeking to dismiss the charges against his client. On May 18th, seemingly in response to Amendola's persistent efforts, prosecutors amended charging papers by adding graphic details and specific dates for some of the alleged assaults.
So how close are we really? As it turns out, very close. On Monday, Senior Judge John Cleland issued a two-sentence order denying Sandusky's motion to delay the start of trial. Judge Cleland also issued a second order relating to discovery and other pre-trial procedures, requiring the parties to do the following:
Prosecutors must reply by Friday to defense arguments that charges should be dismissed because the prosecution did not provide enough specifics in the criminal complaint and to a defense writ of habeas corpus demanding prosecutors provide proof to justify Sandusky's detention on the charges.
Defense attorneys must by Friday supply prosecutors with a list of expert witnesses it intends to call and any reports prepared by those witnesses. If an expert witness' report is not complete, the defense must provide prosecutors with at least a summary of the expert's intended testimony, conclusions and basis for those conclusions.
Prosecutors have until May 30 to provide the defense with a written statement of alleged evidence of misconduct by Sandusky for which he has not been charged.
What's next? A pretrial hearing on May 30th to resolve any outstanding legal issues. Importantly, Judge Cleland still has not ruled on Amendola's May 16th motion to dismiss. That motion can be granted either partially or in its entirety. Assuming some of the charges remain after May 30th (and there's no reason to believe they won't), jury selection begins on June 5th.
The timing of all of this is, on balance, good for Penn State. With Sandusky's continuance request denied, the worst of the Sandusky trial will occur in early summer. Few students will be on campus and the trial will be over several months before Bill O'Brien officially takes the field with his first Nittany Lion team. In the (highly) unlikely event that the charges against Sandusky are dismissed, there will be a wave of press coverage consisting mostly of awkward post-mortems that will famously wonder if the press rushed to judgment, if judge got it wrong, and whether the "real" Jerry Sandusky is the retired coach with a sparkling community reputation, or the alleged monster in the Penn State windbreaker that the world met on November 5, 2011. And then it will be over; everyone will move on and Penn Staters will be the only ones scarred enough to remember the months when the world felt like it was collapsing on top of them.
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