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| Former FBI Agent McChesney |
for BigTrial.net
The state attorney general's office is lamely trying to discredit a former FBI agent's diary that documents collusion and illegal grand jury leaks committed by the AG's office during the criminal investigation of Jerry Sandusky.
The 79-page diary was written in 2011 and 2012 by former FBI Special Agent Kathleen McChesney, when she was acting as co-leader of a supposedly independent civil investigation of Penn State being led by former FBI Director Louis Freeh.
In a 24-page brief filed Aug. 6th in opposition to Sandusky's motion for a new trial, the state attorney general's office argues that the McChesney diary "has never been produced or authenticated," and that any excerpts from it amount to hearsay.
But in a 17-page reply brief filed Aug. 20th, Sandusky's lawyers argue that there's a simple solution to that problem of authenticity -- let's bring McChesney in for an evidentiary hearing, so she testify as to the "truth and accuracy" of her diary.
Before the attorney general attacked the credibility of the McChesney diary, the AG argued that Sandusky's lawyers did not produce this newly discovered evidence in a timely fashion, so Sandusky's motion for a new trial should be dismissed by the state Superior Court.
Sandusky's lawyers received a copy of the diary on Nov. 4, 2019, but they didn't bring it up at a Nov. 22, 2019 re-sentencing hearing, the state Attorney General argues. Nor did they bring the diary up at a Jan. 28th hearing on post-sentence motions. Instead, Sandusky's lawyers waited until May 9, 2020 to file their motion for a new trial, the AG complains.
"Since the diary was essentially the crux of the motion for a new trial there is no reason why it should have taken Sandusky six months to file the motion," argued Attorney General Josh Shapiro, Executive Deputy Attorney General Jennifer Selber, Chief Deputy Attorney General James Barker and Senior Deputy Attorney General Jennifer Buck.
But in their reply brief, Philip Lauer and Alexander Lindsay, Sandusky's lawyers argue that in addition to the McChesney diary, they received copies of formerly confidential emails from the Freeh Group on Feb. 21st. And on March 10th, they received a summary of Freeh's interview with one of the jurors at the Sandusky trial, which Sandusky's lawyers say may amount to jury tampering.
The additional confidential records "demonstrated how the information received in the diary . . . directly affected Mr. Sandusky's trial," his lawyers wrote. "Mr. Sandusky's claim [for a new trial] was not ripe to present to this court until this information as presented din conjunction with the McChesney diary entries."
In their reply brief, Sandusky's lawyers argue that the motion for a new trial was "promptly filed after the [newly discovered] information was received and evaluated by counsel."
There's something amusing about the AG's brief that argues that Sandusky's motion for a new trial should be dismissed because it was based on newly discovered evidence that wasn't presented in a timely manner -- the AG's brief was filed a day late after a court-imposed deadline, when the court had previously declared there would be no exceptions for tardy filings.
Undaunted, the AG's office in its brief continues to argue that the McChesney diary "has never been produced or authenticated." The same goes for confidential emails presented in Sandusky's motion for a new trial that detail leaks from the AG's office to investigators at the Freeeh Group. And, the AG argues, because none of these materials have been produced or authenticated, the excerpts quoted by Sandusky's lawyers in their motion for a new trial amount to hearsay.
The AG's argument, however, "ignored the fact that Sandusky has identified the author of the diary as a witness," Sandusky's lawyers say. And if the court holds an evidentiary hearing, as requested by the defendant, lawyers on both sides would have a chance to "examine her [McChesney] regarding . . . her having written it [her diary], and the truth and accuracy of its content."
"As such, it will clearly not be hearsay," Sandusky's lawyers contend. "Further, the diary is, and was, an admissible business record."
As an FBI agent, McChesney was a key member of the task force that arrested serial killer Ted Bundy. She rose in the ranks to become the only female FBI agent appointed to be the bureau's executive assistant director.
McChesney's credibility was such that in 2002, in the wake of the widespread sex abuse scandal involving the Catholic clergy, the U.S. Conference of Bishops hired McChesney to establish and lead its Office of Child and Youth Protection.
McChesney is also the author of a 2011 book, "Pick Up Your Own Brass: Leadership the FBI Way."
In court documents, the AG's office and Sandusky's lawyers spar over the significance of the alleged leaks during the criminal investigation of Sandusky. The state attorney general argues that allegations that the AG was responsible for the leaks have never been proven, and that Sandusky's lawyers have falsely claimed that the AG was leaking because it was involved in a desperate search for new alleged victims of Sandusky.
In response, Sandusky's lawyers cite a 2014 report commissioned by former state Attorney General Kathleen Kane, which said the Sandusky investigation was stalled until reporter Sara Ganim of the Harrisburg Patior-News published leaked details of the grand jury indictment.
According to the report compiled by Geoffrey Moulton, Sandusky's lawyers say, former deputy Attorney General Frank Fina had the "very strong" belief that the case against Sandusky "was too weak to go forward" unless the state produced additional alleged victims.
And when Ganim's story was published, it "generated two significant leads on additional criminal conduct by Sandusky," the Moulton Report stated.
"We are now confronted with a much more detailed summary of the passing of secret grand jury information from the Attorney General's Office to those individuals involved in the Freeh investigation," Sandusky lawyers argue, referring to the McChesney diary. "Still, there has been appointment of a true special prosecutor" to investigate the leaks.
It's the contention of Sandusky's lawyers that there was so much collusion going on between the AG's office and Freeh's investigators that the two probes amounted to a "de facto joint investigation" marred by illegal leaks of secret grand jury information.
"Being well aware that defense counsel does not have the power of compulsory process, and cannot subpoena witnesses at this stage of the proceedings, the Commonwealth dismisses the allegations in Mr. Sandusky's new petition as unauthenticated hearsay," Sandusky's lawyers wrote.
So therefore, "It is essential that this court remand the matter for an evidentiary hearing giving Mr. Sandusky the power to subpoena witnesses," to prove what is "known to be true."