By Ralph Ciprianofor BigTrial.net
Lawyers for Jerry Sandusky yesterday charged the state Attorney General's office with prosecutorial misconduct for withholding a revelatory email exchange between the lead prosecutor in the case, and her distraught star witness.
A day before the judge in the case was expected to announce whether Sandusky would be granted a new trial under the Post Conviction Relief Act [PCRA], lawyers Alexander H. Lindsay Jr. and J. Andrew Salemme filed a motion in Centre County Common Pleas Court asking the judge to reopen the record, admit newly discovered evidence, and convene a hearing to question former Deputy Attorney General Jonelle Eshbach, and whistle blower Mike McQueary.
A Big Trial story on the email exchange, first disclosed by blogger Ray Blehar, was attached to the defense lawyers' petition filed yesterday as Exhibit B. [The email exchange itself was Exhibit A.]
On Nov. 10, 2011, six days after the state Attorney General's office released its official grand jury report on the Sandusky sex scandal, McQueary emailed Eshbach to tell her that the grand jury report that said McQueary had witnessed a naked Sandusky in the Penn State showers having anal intercourse with a 10-year-old boy was wrong. In that same email, McQueary complained to the A.G.'s office that they had "twisted" his words about "whatever it was" that he had actually seen or heard in the showers.
In a second email sent that same day, McQueary complained to Eshbach about "being misrepresented" in the media. McQueary appeared to be contradicting a Sara Ganim report by telling Eshbach, "I never went to Coach Paterno's house with my father . . . It was me and only me . . . he was out of town the night before . . ."
"I know that a lot of this stuff is incorrect and it is hard not to respond," Eshbach responded in an email to McQueary. "But you can't."
In their petition, Sandusy's lawyers wrote that they just received a copy of that email echange on Oct. 10th, and that it had not been turned over previously to Sandusky's trial attorney, Joseph Amendola.
"This email exchange, which is attached, is evidence that McQueary's statements that he met with his father regarding observing Mr. Sandusky in the shower with a child the same night is inaccurate as Michael McQueary indicates that his father was not actually in town," the lawyers wrote.
In the McQueary email, there's some confusion over whether the person that McQueary said was out of town was his father, or Coach Joe Paterno. Either way, the defense lawyers write, it's a problem for the prosecution.
"To the extent that the email could be construed as Mr. McQueary stating that Mr. Paterno was not in town, it is believed . . . that Mr. Paterno was home and therefore that also could have been impeachment evidence," the lawyers wrote.
In their petition, Sandusky's lawyers say the email exchange where McQueary claims the AG's office twisted his words was evidence of prosecutorial misconduct. The defense lawyers previously gave the judge in the PCRA hearing a transcript from the Graham Spanier case, where McQueary disclosed on the witness stand that the AG's office had informed him that they were going to leak the grand jury report to the media.
"None of this information had previously been provided by the office of attorney general," Sandusky's lawyers wrote the judge.
This "additional information is further evidence of the prosecution's failure to turnover Brady impeachment evidence," the lawyers wrote, referring to the landmark U.S. Supreme Court case, Brady v. Maryland, where the court ruled that all evidence that could benefit a defendant must be turned over to the defense.
At the end of their petition, Sandusky's lawyers ask for a hearing where Eshbach, McQueary and Amendola would be summoned to testify "as to whether such information was disclosed and/or received by trial counsel in conjunction with previously raised Brady claims."