It’s been more than a year since Jerry Sandusky was indicted on what was then 40 counts of child sex abuse and almost six months since a jury of his own peers found him guilty on 45 counts of abusing boys.
Now, the former assistant football coach is spending what will most likely be the rest of his life in a southwestern Pennsylvania maximum-security prison, where he continues to maintain his innocence.
It’s up to his attorneys to change that.
While Sandusky and his defense attorneys have yet to file an appeal in his child sex abuse case, the possibility of a retrial may not be out of the question, according to attorneys in the legal community.
Since the closing arguments were made on June 21, much of the legal community has been debating the chances of the Bellefonte area seeing the case through once more.
State College defense attorney Matt McClenahen said the biggest concern is a statement prosecutor Joe McGettigan made during his closing argument, which implied Sandusky’s silence during the trial was indicative of his guilt.
“He had the complete capacity to exonerate himself at the time,” McGettigan said, according to the trial transcripts.
In making this statement, however, McClenahen said McGettigan made a “rookie mistake” that could potentially get the case re-tried, as it is a defendant’s Fifth Amendment right to remain silent during his trial.
“It was completely inappropriate,” he said. “There is case law out there that says that’s cause for error… It’s possible that that could be reversible error.”
Defense attorney Karl Rominger has said in past interviews that the appeal will focus on the very statement McClenahen referenced, as well as the lack of preparation time for the case.
But Nils Frederiksen, spokesman for the Pennsylvania Attorney General’s office, said he would not “engage in a hypothetical discussion” on the effect of McGettigan’s statement.
“We are still at the very beginning on any appeals process,” he said. “We are not going to speculate on any appeals issues that might be brought up.”
The best chances for an appeal, however, will come from McGettigan’s statements.
McClenahen said if Judge John Cleland gave a curative order — or told the jury to dismiss McGettigan’s statements about Sandusky’s silence — the case shouldn’t stand much of a chance in its hopes for an appeal.
Transcripts reveal that shortly following McGettigan’s statements, Rominger objected to Cleland in a court sidebar about multiple facets of the closing arguments, specifically the prosecution’s “commentating on silence.”
Cleland then told both the prosecution and defense that he would again “caution the jury” to reach their verdict solely based on the evidence available to them through the trial, according to transcripts.
While Cleland never explicitly referenced McGettigan’s closing statements, he did address the jury before they began deliberations.
“You must decide those charges based on the evidence presented here in this courtroom and be reminded that the burden is on the Commonwealth to prove its case beyond a reasonable doubt and that the defendant has no obligation at any time to present any evidence in his own defense,” Cleland said, according to the transcripts.
Whether that holds up in court is another story, McClenahen said, acknowledging he was not in the courtroom nor did he read the full transcripts from the trial.
Currently, the post-sentence motions have been filed in trial court and the defense is in the process of writing a statement supporting the motions previously submitted, which focus on lack of evidence to support the verdict and sentence.
The defense recently filed for a two-week extension in filing the support brief, but as of press time Thursday, the court had yet to rule on the request.
Despite what many believe, the case has not been appealed yet and can’t be until post-sentence motions are ruled on, McClenahen said. The defense did bring in appellate specialist Norris Gelman to see the case through the appeal process.
Amendola said in a previous interview that he intends to remain working on the case due to his background with Sandusky and his knowledge of the material.
But until an appeal is determined, lawyers continue to worry.
“It’s really strange that someone of his age made that error,” McClenahen said about McGettigan. “They don't have rookie prosecutors in the [Attorney General’s] office for a reason.”
McClenahen also said a retrial would be detrimental and frustrating to the surrounding community due to the press and media attention it received during the summer.
The police numbers and added security alone would be hard to replicate during the school year, he said.
“I’m distraught,” McClenahen said. “Instead, [Sandusky] fights this to the death and brings down Penn State with him.”
Rominger was not able to reached for comment as of press time Thursday.