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Sandusky's bid for new trial in Pa. judges' hands

Published: Tuesday, Sept. 17, 2013 7:39 p.m. CDT

WILKES-BARRE, Pa. – Jerry Sandusky's lawyer faced skeptical questioning Tuesday from three judges on the Pennsylvania appeals court over his client's request that they order a new trial in his child sexual abuse case.

The arguments made on behalf of Sandusky, the former Penn State assistant football coach, include that his lawyers didn't have time to prepare for trial, that a prosecutor made improper references to Sandusky not testifying and that the judge mishandled jury instructions. The Superior Court judges did not indicate when they would rule.

Sandusky, 69, is serving a 30- to 60-year state prison sentence after being convicted last year of 45 counts of child sexual abuse. He was not in the full courtroom for the argument session, held in a county courthouse in Wilkes-Barre as part of the court's initiative to make its business accessible to a wider public.

Sandusky lawyer Norris Gelman told the appeals court that the trial judge should have addressed to jurors the length of time it took Sandusky's victims to report their abuse, in some cases more than a decade.

"No one told the jury, 'Look, you have a 16-year delay here and that has an impact under the law'," Gelman argued. "We're talking severe, aggravated delay."

James Barker of the attorney general's office said jurors were fully informed about the delay issue, even if that did not take the form of a jury instruction. Barker said the defense made it clear that their theory was that there was delayed reporting, and that the victims were motivated by a desire to cash in based on false allegations.

"All of the concepts that needed to be conveyed to this jury were conveyed to them," Barker said. "They knew exactly what was at issue."

Gelman also argued that the case was rushed to trial, with a huge volume of material from prosecutors swamping the defense. But Barker said the material could be contained in two boxes, and the defense team was told that much of what they asked for was not relevant to the trial.

"They ignored that. They wanted it, and so they wasted their time," Barker said. "That's not our fault; it's not the trial judge's fault."

Judge Jack Panella asked Gelman about a statement made after the trial by Sandusky lawyer Joe Amendola. He said that months later, he had not found anything in the documents that would have changed his approach to trial.

"That's after the fact, that's long after the fact," Gelman said. "During the trial he was flying blind – a bad way to try a case."

Gelman argued that a prosecutor's comments about an interview Sandusky did with NBC shortly after his 2011 arrest amounted to an improper reference to the fact that Sandusky did not take the stand in his own defense.

Panella asked whether Sandusky's lawyers requested a curative instruction or mistrial as a result, raising questions about whether the issue was properly before the appeals court. Gelman said they did not, but said the mistake was "so egregious" that the judge should have acted on his own.

Barker said Gelman, in court and in his brief, were taking the comments out of context, and that the proper context was limited to the interview itself, and how Sandusky struggled to respond to questions from NBC's Bob Costas.

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