The lead prosecutor in the case against former Penn State football coach Jerry Sandusky filed an unusual motion in Centre County Court Friday, accusing the defense of improperly using subpoenas and violating an order that protects the names of the alleged victims in the case.
Senior Deputy Attorney General Joseph McGettigan accused defense attorney Joseph Amendola of revealing the names of people known in court records as "Victims 1 through 10 in a number of subpoenas he's served, including to the Pennsylvania State Police, a Clinton County school district and the Penn State University police."
McKean County Senior Judge John M. Cleland previously issued an order directing that the names of the victims identified in the two grand jury presentments against Mr. Sandusky "shall remain protected under the seal of the court and may not be disclosed by any person, except pursuant to court order or other authorization of the court."
According to the March 13 order, subpoenas must include with them a notice, in all capital letters and at least 18-point font the following:
"The name or any identifying information of the person for whom the records or other information is sought is protected by the seal of the court. Under potential penalty of contempt of court, the person's name or identifying information may not be disclosed to any person except as required to comply with this subpoena."
According to the attorney general's motion, Mr. Amendola complied with providing the required notice, yet still included the names of the victims in either the body of the subpoena, in attachments or in cover letters.
"The commonwealth need not underscore to this honorable court the spectacular irresponsibility of treating secret information in that fashion," Mr. McGettigan wrote.
He alleges that the way Mr. Amendola handled his subpoena power is "manifestly improper."
The defense attorney, in a written response Friday, said it would be inappropriate to comment based on a gag order issued by Judge Cleland earlier this month.
He did say, though "we deny the allegations of improper use of subpoena power made by the commonwealth in its motion."
Mr. Amendola expects to file a detailed response next week.
Mr. Sandusky is accused of sexually abusing 10 boys over a 15-year period and is scheduled for trial on June 5.
In the motion filed Friday, Mr. McGettigan also accuses the defense of making improper requests in his subpoenas.
As part of the subpoena, Mr. Amendola tells the recipients that if the necessary documentation being sought is not provided before then, that they must appear for court at a status conference on May 16. That's even though, Mr. McGettigan writes, no testimony is scheduled to be taken that day.
The prosecutor asks Judge Cleland to direct Mr. Amendola to immediately cease production of the subpoenas and in the future to make him document the need for his request.
University of Pittsburgh law professor John Burkoff, who has been following the case, called Mr. McGettigan's motion highly unusual.
Generally, if one side feels as if an improper subpoena has been issued, or that the process was flawed, it would file a motion to quash.
In this instance, Mr. Burkoff said, the prosecutor is trying to stop the defense from using the subpoenas entirely.
"If the AG's allegations are correct, Sandusky's defense counsel has been misusing subpoenas in a number of ways, including using them in such a way as to reveal victims' identities," he said. "Whether this was inadvertent or not, it's clearly a violation of the trial judge's order.
"If the judge thinks they did this on purpose, he's going to be one irritated judge."
At a minimum, he continued, the judge would instruct Mr. Amendola to stop the behavior. At worst, he could hold the veteran Centre County defense attorney in contempt.
Mr. Burkoff questioned whether the move is a tactical one on the part of the defense, and if so if it is either sensible or ethical?
"This is a really important [order]," Mr. Burkoff said. "I don't think a judge would take an intentional flouting of that order sitting down."
Paula Reed Ward: firstname.lastname@example.org or 412-263-2620. First Published April 28, 2012 1:45 PM