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  • Sandusky Opinion and Order Filed November 18 2016

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    Kody Leibowitz
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    Center County judge John Cleland recused himself from presiding over Jerry Sandusky post conviction relief petition.

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    Center County judge John Cleland recused himself from presiding over Jerry Sandusky post conviction relief petition.

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    347 views17 pages

    Sandusky Opinion and Order Filed November 18 2016

    Uploaded by

    Kody Leibowitz
    Center County judge John Cleland recused himself from presiding over Jerry Sandusky post conviction relief petition.

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    of 17
    s1/1e/2016 es:1em 6149976672 Pace e2/18 IN THE COURT OF COMMON PLEAS OF CENTRE COUNTY, PENNSYLVANIA CRIMINAL DIVISION (COMMONWEALTH OF PENNSYLVANIA vs. -14-0R-2421.2014 (CP-14-GR-2422-2011 GERALD A. SANDUSKY OPINION AND ORDER Dated: November 18, 2016 ‘8 HY 81 AoNSIN2 ‘The purpose of this opinion sto explain the reasons why | have entered tho. atached order in which | recuse myself from presiding over any further proceedings in this case. ‘The defendant's attoneys have impugned the competence and integrity of ‘essentially everyone associated with the grand jury's Investigation into the defendants Conduct, the defendant's tial and conviction, and these post-conviction proceedings. Now they have chosen to impugn the integrity of the cout itsel. * + Prosecutor Joseph MeGettigan “led tothe juy." 2" PCRA at 33, and engaged in “prosecutorial misconduct." Id. at 20, ‘+ Prosecutor Jonelle Estbach lacked candet...or may have committed perjury.” (Defendant's bret 11/18/16, fn. 5 at 19) * Defense Atiorey Joseph Amendola “committed perjury" (Wd, tn. 8, p 25). He placed “his ‘wm interests in publicly above tho itereata of he clon (1. fn. 10 at 28). ‘+ Grand Jury Supervising Judge Norman A. Krumenacker's ruling i eeized forts “incredulity (Id fi, 18 at 67) ‘+The Supotior Cour jusges wo decided tho appeal from the verdict and sentence “had decided the case prior fo oral argument or the author had atleast crusted a proposed sdeosion in advance.” (2™ PCRA fin. 13, t 23) + Grand Jury Supervising Judge Barry Feudale was “unflry biased’ and he and “the Commonweath acted concert to deprive” te deendant of Ba matorl (2 PCRA, 263) 1 11/19/2018 es:ann e14ea76672 Pace 03/18 These collective accusations directed at attorneys, Judges, urors, Investigators, ‘and vietims, based on what can only be characterized as diaphanous evidence, is @ {orm of advocacy that transcends the tracitional boundaries of an honored profession. ‘Such advocacy should not be permitted by courts, and should merit the attention of the Discipinary Board. ‘After hearing the witnesses called by the defendant’ attorneys in suppor of their Post Conviton Relof Act (PCRA‘) petition, counsel were ordored to submitter final biles by November 14, 2018 on the issues on which evidentiary hearnge had been hel. In their Brot on Evidentiry Hearing Issues, the defendants attorneys addressed, ‘among other isos, the lsu identiied as “Iesue 11 in Second Amended PCRA Petition." As stated in the Pettion thelr contention is: “Trial counsel tendered ineffective assistance in walving Mr. Sandushy’s proiminary hearing and fling to uso thal proceeding for both lacovery and to cross-examine the witnesses who had given numerous prior inconsistent statements." ‘The brief proceeds c address the issue raed by stating that by waiving the Proliminary hearing trial counsel Joseph Amendola was inadequately prepared to cross- examine the victims at tial that he had not dlscussed withthe defendant the * jSoveramenta offi Invoved inthe Sandusky vestigation itentonaly leaks grand Ju information’ which was “a deliberate act by the prosecution and is agents” (2 PCRA, at 54), ‘+ “Only a member of the Office of attomey General could have caused tha presentment 10 ‘be made available onlire when Itwas supposed tobe under seal" (Addendum fo Grand Jury Leak Claim, 7/14/16, at 2), ‘+ "Tho faimness ofall the jurors selacted can be questioned” including two jurors epecicaly wail to have bean “blacad." (2 PCRA, at 70-70), 11/10/2016 sre ex48976672 Pao e/a advantages and disadvantages of waiving the proliminary hearing; and that he had not told the defendant that there was an agreement with the Commonwealth rogarding the waiver. (Brief, at 23-28) At that point counsels brief then veers off into an entirely unanticipated argument in which they contend that | violated the Rules of Judicial Conduct (Id. fin. 9, at 26) and Ponneylvania case law (Id, at 34) by my “participation” in “negotiations regarding the plea waiver" (Id. at 33, 94, 36) which were conducted at a “night-time” “unprecedented off the record meeting at a hotel conference room" (Id. at26) and that “t violates a defendant's due process rights for @ court to be involved in the negotiation of walver of Important rights." (Id. at 33), Upon reading that portion of counsel's bref it became apparent that counsel had ‘chosen to base their argument on what, because of my May 10, 2016 Memorandum ‘and Order, they knew was sn incomplete account of what happened at the meeting. Instead of asking me to revisit my recusal order and thereby obtain my testimony, they elected to rest on an a clearly misleading record. Accordingly, | entered an order on November 15, 2016 clrecting counsel to either “notify me oftheir intent to call me as a material winoss regarding a meeting at the Hilton Garden Inn the evening before the defendant's preliminary heering, or formally withdraw footnote 9 on page 26 and any argument related thereto,” On November 16", ‘counsel informelly notified me that they would do neither, and fllod their formal response the next day. They stated they would not withdraw feotnote 9 and the related ethics ‘argument because they did not want to waive that ue on appeal; and they would not call mo was a witness becatse ofthe disingenuous argument that they ate precluded from doing so by Pa.R.E. 605. 11/18/2018 os:1ae 149976672 Pace es/30 On May 3, 2016, duing a mecting in chambers with PCRA counsol and the proseculor, | informed course that | had attended a meeting during the evening of December 11, 2011 wth Magisterial District Senior Judge Robert E. Sout, and prosecution and defense counsel the evening before the defendant's preliminary hearing. At that meoting Judge Scott and I were informod the defendant would bein court to waive his preiinary hearing that was scheduled forthe following morning. The ext day, May 4, 2016, | electronically transmitted tothe attorneys the handwritten notes {had made during the December 11, 2011 meeting. ‘On May 9, 2016, PCRA counsel filed a one and one-half page motion requesting ‘my recusal stating as the grounds: At this offshe-record meeting at the Hitton Garden Inn, certain Topresentations appear to have been made by both the Commonwealth and Mr. ‘Amendola and an unofficial agreement was reached regarding waiver of Mr. ‘Sandusky’s preliminary hearing that was fo transpire later. This agreement is ‘oxtra-record and perians io Mr. Ainundola’s decision to waive Mr Sanduaky’s preliminary hearing which involves a specific claim of ineffectiveness in Mr. Sandusky’s PCRA petition, “in ight of the unusuainess ofa trial judge being present for a non-record

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