On the evening of December 12, 2011, four lawyers and two judges assembled inside a small conference room at the Hilton Garden Inn in State College, Pennsylvania.
No court reporter. No transcript.
They met in a conference room at a hotel instead of a courtroom.
When the meeting adjourned, Jerry Sandusky’s right to a preliminary hearing was waived. Sandusky was not present.
His preliminary hearing had been scheduled for the next morning, December 13, 2011.
The Preliminary Hearing
A preliminary hearing is a defendant’s first opportunity to confront his accusers. Defense counsel can question witnesses about their stories, their histories, their exposure to civil attorneys, and the methods investigators used to obtain their statements. A preliminary hearing is designed as a check on state power.
It exists to slow things down.
For Sandusky, it might have exposed that the accusers’ stories had changed over time, that therapists employing memory recovery techniques had helped shape their accounts, and civil attorneys promising millions in settlements had put the accusers and their memory recovery therapists together.
The testimony obtained at a preliminary hearing would have provided the foundation for a Frye hearing giving Sandusky the opportunity to challenge the scientific reliability of recovered memory testimony and whether such methodology is “generally” accepted in the science community. Such a hearing might have excluded most of the accusers.
Instead, the preliminary hearing was waived — not in court but at a hotel: the Hilton Garden Inn.
Present that night were:
Judge John K. Cleland — who would preside over the trial
Joseph McGettigan — lead prosecutor
Frank Fina — senior prosecutor
Prosecutors Frank Fina and the late Joseph McGettigan
Jonelle Eshbach — prosecutor
Joseph Amendola — Sandusky’s lead defense attorney
Defense Attorney Joe Amendola
The District Magistrate Judge Robert E. Scott
District Magistrate Judge Robert E. Scott
Absent:
Sandusky — the defendant.
Jerry Sandusky
Also abent was Karl Rominger, Sandusky’s co-counsel and an advocate for preliminary hearings. Rominger had written on the subject, arguing that defendants should never waive this critical right.
Neither was invited. Neither was told about the hotel meeting.
Sandusky’s excluded co-counsel, Karl Rominger
The Threat
Prosecutor McGettigan delivered the message: If Sandusky didn’t waive his preliminary hearing, the Commonwealth would seek bail of $5 million. Sandusky couldn’t pay it. He would go to jail before the trial.
This was conducted in front of the judge who would rule on any bail motion. Judge Cleland said nothing. He didn’t tell the prosecutors he would reject an excessive bail request.
Cleland’s own notes from the meeting reveal what mattered to him: “We’ve got to get this thing to trial.”
Not: “We’ve got to ensure a fair process.” Not: “We’ve got to protect the defendant’s rights.” Instead: “We’ve got to get this thing to trial.”
Judge John Cleland had a mission: Convict Jerry Sandusky before the football season.
Amendola agreed. In exchange for surrendering the preliminary hearing, the prosecution would refrain from seeking an increase in bail. The preliminary hearing was waived.
Rominger learned of the waiver the next morning. He was furious. Amendola never told him about the hotel meeting.
Rominger only learned about the Hilton Garden Inn years later, when post-conviction attorneys uncovered it.
The one lawyer who would have said no wasn’t just excluded; he was kept in the dark.
The Rush
Without a preliminary hearing, the defense never got early sworn testimony from the accusers. They never locked in the inconsistencies. They never laid the foundation for a Frye hearing that might have excluded testimony obtained through repressed-memory therapy.
Testimony was never fixed. Contradictions never preserved. Scientific challenges to memory-contaminated evidence were never heard.
The hotel meeting produced a trial schedule. Sandusky was arrested November 5, 2011. His trial began June 11, 2012.
Seven months to prepare for one of the biggest criminal trials in state history.
One of the most complex cases in Pennsylvania history: ten accusers, decades of alleged conduct, national media saturation, and accusations that had evolved under the influence of therapists, investigators, and civil attorneys. It was rushed to trial faster than a routine burglary.
Why?
The NCAA had threatened to cancel Penn State’s football program. Sandusky had to be convicted by summer.
What’s worth more – the freedom of one man or the financial health of a university and the surrounding community?
Ten days before trial, prosecutors dumped 12,000 pages of discovery on the defense. Twelve thousand pages, with only ten days to review them. Amendola requested a continuance. Judge Cleland denied it.
Amendola asked to withdraw, telling Judge Cleland he could not effectively represent his client. The Rules of Professional Conduct require an attorney who cannot provide effective representation to decline the case.
Cleland denied the motion.
Amendola should have refused and accepted contempt. But he went forward. And the verdict followed.
The Recusal That Came Late
Four years later, Sandusky’s post-conviction attorneys discovered the secret hotel meeting. They moved to recuse Judge Cleland. He recused. But the damage was done.
The $100 million in settlements had been paid.
Eight men testified that Jerry Sandusky abused them – and the awards they got from Penn State.
Hotels vs Courtrooms?
Is Pennsylvania v. Sandusky the only case where a preliminary hearing was waived and an impossibly rapid trial schedule was set at a secret, unrecorded meeting between the judge, prosecutors, and defense counsel at a local hotel?
Was this an exception, or has it happened before and after?
Is this how Pennsylvania justice works?
Judge Cleland may be ahead of his time. Why conduct hearings in a courtroom when the comforts of a nearby hotel will suit everyone but the defendant just fine?
