BELLEFONTE — The judge handling convicted child molester Jerry Sandusky's appeal ordered Pennsylvania's attorney general on Thursday to provide him and the former Penn State assistant football coach's lawyers any information she might have about possible leaks in the case by state prosecutors and a grand jury judge.
Judge John Cleland gave Attorney General Kathleen Kane one week to provide, under seal, information about "who, what, when and how this information was released."
The order, made at the end of a long-scheduled hearing into Sandusky's request for subpoena authority for the post-conviction appeal, came a day after Kane released emails in which the grand jury judge told Philadelphia Inquirer reporters that he was considering giving them a sealed document about Kane's effort to remove him from supervising the jury.
Cleland said that if he determines Kane has not complied with his order, she will have to appear before him in a closed-door hearing in Harrisburg on Nov. 5.
The judge read an excerpt from a news release Kane issued late Wednesday that accused Barry Feudale, the former grand jury judge, of a reckless breach of court rules.
"Do I understand the attorney general to be saying Judge Feudale and attorneys of the Office of Attorney General orchestrated grand jury leaks in this case?" Cleland asked state prosecutor Jennifer Peterson, who represented Kane's office at the hearing.
Peterson replied that Kane's comments pertained to the effort to remove Feudale as grand jury judge in 2013 and had nothing to do with Sandusky's case.
"Our position is that there were leaks in the Sandusky case," defense lawyer Al Lindsay told the judge. "These leaks were used as an investigative tool. And we think we were severely prejudiced by it."
If the grand jury process wasn't fair, the charges should be dismissed, he said.
Lindsay notified Cleland last month that he wants to explore contacts between Feudale and state prosecutors, arguing there had been a "systemic breakdown of the grand jury process."
In response, Kane told The Associated Press on Sept. 30, through spokesman Chuck Ardo, that she suspected Sandusky leaks came from within her office.
"The attorney general herself is not convinced that the leaks did not emanate from the office of attorney general and will comply with any subpoena seeking information about email traffic between this office and the judge," Ardo said at the time.
Cleland questioned Lindsay about whether there is legal authority for him to provide Sandusky with subpoena power at this point in the case. Sandusky, who attended the hearing wearing prison attire, was convicted in 2012 of 45 counts of child sexual abuse and is serving a 30- to 60-year sentence.
He lost a previous round of appeals and is currently fighting the charges under the state's Post Conviction Relief Act, which is relatively narrow in scope.
Lindsay said he wanted to get a sworn statement from a young man he said is the person referred to in court documents as Victim 2, although he did not testify at Sandusky's trial. Former Penn State assistant coach Mike McQueary testified he saw Victim 2 being abused by Sandusky in a football team shower in 2001. The person Lindsay wants to interview has collected a settlement from Penn State over the matter.
Lindsay also wants to get details of agreements the other victims made with their civil lawyers, as well as any book contracts.
Cleland said state case law that prohibits fishing expeditions at this stage in a criminal case could be a problem for the defense.
"It's one thing to say, 'I want discovery to get documents I know exist,'" Cleland told him. "It's another thing to say, 'I want discovery to find out whether documents exist.'"
Lindsay said emails from Feudale that were released by Kane included some "terrible things ... regarding Sandusky."
The judge replied: "We're going to get to the bottom of it."
