In Court, AG Seeks To Cover Up Collusion, Leaks, In Sandusky Case

By Ralph Cipriano

for BigTrial.net

The ethically-challenged state attorney general's office has argued in state Superior Court that a secret diary compiled by a former FBI agent that documents rampant collusion and multiple grand jury leaks by the AG's office during the Jerry Sandusky investigation amounts to "purely speculation."

Sandusky's lawyers are seeking an evidentiary hearing where Kathleen McChesney, the decorated former FBI agent who's the author of the diary, would be brought in for questioning. Sandusky's lawyers also want to question former deputy attorney general Frank Fina, a noted bad actor in this case who also happens to be the alleged leaker repeatedly fingered by McChesney in her diary.

But rather than take on the facts as posed in newly discovered evidence, Jennifer Buck, the senior deputy attorney general in charge of the AG's appeals and legal services division, argued Wednesday before a panel of three judges that such an evidentiary hearing would amount to a "fishing expedition," and that's why Sandusky's appeal for a new trial should be dismissed on procedural grounds.

The "fatal flaw" in Sandusky's appeal is that the collusion and leaks documented in the McChesney diary amount to "nothing more than speculation" about what "certain diaries entries and emails should be interpreted to mean," Buck told the judges.

"I think the allegations that we raised are new and they're very grave, and very, very important," countered Al Lindsay, Sandusky's lawyer. Lindsay argued that the McChesney diary is a breakthrough in the long running Sandusky case because it documents grand jury leaks and collusion between the AG's criminal investigation of Sandusky, and the supposedly independent civil investigation done on behalf of Penn State by former FBI Director Louis Freeh. 

"We have to take testimony from the individuals involved," such as McChesney, Fina, and Freeh, Lindsay insisted to the judges during a half-hour of oral arguments in the case. 

The 79-page diary was written in 2011 and 2012 by former FBI Special Agent McChesney, when she was acting as co-leader of the civil investigation of Penn State being led by former FBI Director Louis Freeh.

As an FBI agent, McChesney was a key member of the task force that arrested serial killer Ted Bundy, and she was prominently featured on camera last year in a Netflix documentary series, "Conversations With A Killer: The Ted Bundy Tapes." After the Bundy case, McChesney rose in the ranks to become the only female FBI agent ever 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. 

She's also the author of a 2011 book, "Pick Up Your Own Brass: Leadership the FBI Way." In state Superior Court, Sandusky's lawyers are hoping McChesney's unpublished diary will win a new trial for Sandusky, convicted in 2012 on 45 counts of child sex abuse, and sentenced to 30 to 60 years in jail.

In McChesney's diary, she not only documents grand jury leaks by Fina, but she also describes the AG's office supplying the Freeh Group with documents and grand jury transcripts that they didn't have a legal right to see. McChesney's diary also documented how Fina was actively involved in directing the Freeh Group's investigation, to the point of saying if and when they could interview certain witnesses. 

For example, McChesney recorded that the Freeh Group had to notify Fina when they wanted to interview Ronald Schreffler, an investigator from Penn State Police who probed a 1998 shower incident involving Sandusky and a young boy that never resulted in criminal charges. After the Freeh Group notified Fina about the requested interview, McChesney wrote, "Fina approved interview with Schreffler."

In court, however, rather than take on those type of allegations, the AG has argued that Sandusky's lawyers did not produce the McChesney diary in a timely fashion, so that Sandusky's motion for a new trial should be dismissed on procedural grounds by the state Superior Court.

Sandusky's lawyers received a copy of the McChesney diary on Nov. 4, 2019, but they didn't bring it up at a Nov. 22, 2019 re-sentencing hearing, the state Attorney General has argued. Nor did Sandusky's lawyers bring up the diary 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 complained.

But Lindsay has argued that in addition to the McChesney diary, Sandusky's defense team on March 10th received a summary of the Freeh Group's interview with one of the jurors at the Sandusky trial, which Sandusky's lawyers contend amounts to jury tampering.

In oral arguments, Lindsay said the procedural objections from the AG's office amount to a "remarkable response" that's an attempt to dodge the real issue involving evidence from a decorated FBI agent that documents corruption in the AG's office. 

Lindsay said he waited to notify the court about the McChesney diary because he wanted "to show the impact" the AG's collusion and leaks had on Sandusky's criminal trial. 

"We knew they [the AG and Freeh] were running a de facto joint investigation," Lindsay told the court, but he needed to gather more evidence, such as Freeh's interview with one of the jurors, and an affidavit from Joseph Amendola, Sandusky's trial lawyer.

In an affidavit, Sandusky stated that he had no idea of the collusion that was going on between the AG's office and Freeh. And had he known, Amendola would have sought to dismiss the juror from the case. Amendola stated in his affidavit that he would have also sought to question other jurors in the Sandusky case about whether they were also interviewed by Freeh. 

"Is it your position that they [Freeh] may have tainted" one of the jurors, a judge asked.

"Absolutely, our petition alleges that," Lindsay shot back. 

In response, Buck argued that an evidentiary hearing required "actual facts that warrant a hearing," she said, and that such a hearing "is not meant to be a fishing expedition."

"What we have at this juncture," Buck argued, was, "they criticize the Freeh report and are taking the diary entries and certain emails and interpreting them, rather than looking at cold hard facts."

A judge asked if the allegation of a "tainted juror" was enough of an argument to "warrant further development of those facts."

Buck agreed, but then asserted that even if true as alleged, "the new evidence doesn't change anything," as in the verdict in the Sandusky trial. As in let's keep moving, there's nothing to see here.

But, Lindsay argued that when she was questioned in court by Amendola and the trial judge, the "responses given by the potential juror seem to be different" than what was recorded in a summary on the juror's interview with the Freeh Group.

During jury selection on June 6, 2012, Laura Pauley, a professor of mechanical engineering at Penn State who served as a juror in the Sandusky trial, was asked by Amendola what she had previously told Freeh's investigators.

"It was focused more on how the board of trustees interacts with the president," Pauley told Amendola, as well as "how faculty are interacting with the president and the board of trustees . . ."

But the interview went much further than that, and also revealed clear bias by Pauley against Penn State and its handling of the Sandusky case. Although she hadn't heard any evidence yet, Pauly already had her mind made up about Sandusky's guilt, as well as whether top Penn Sate officials were guilty of a cover up.

According to a summary of the April 19, 2011 interview with Freeh's investigators, Pauley stated that she believed that the leadership at Penn State just "kicks the issue down the road."

"The PSU culture can best be described as people who do not want to resolve issues and want to avoid confrontation," Pauley told Freeh's investigators, according to their summary of the interview. She also stated that Penn State President Graham Spanier was "very controlling," and that "she feels that [former Penn State Athletic Director Tim] Curley and [former Penn State vice president Gary] Schultz are responsible for the scandal."

"She stated that she senses Curley and Schultz treated it [the scandal] the 'Penn State' way and were just moving on and hoping it would fade away," the summary states. In an interview with author Mark Pendergrast, the juror also disclosed that in her opinion, Freeh's investigators were trying to put words in her mouth, Lindsay told the Superior Court panel of judges.

When Pauley was questioned by Amendola at the Sandusky trial, "At no time during this colloquy, or any other time, did the prosecution disclose that it was working in collaboration with the Freeh Group, which interviewed this witness," Sandusky's lawyers contended in a brief.

In court, Buck continued to argue that whatever was written in the McChesney diary, "There's certainly no evidence of collusion." 

But Lindsay argued that "the whole purpose is of having the hearing is so we can bring in the author of the diary," and "bring in witnesses" who can testify about the collusion, as well as the "virtual gushing of grand jury leaks."

Lindsay also told the judges he was tired of listening to frequent procedural objections from the AG's office.

"When it comes to this case, any procedural thing that they [the AG's office] can throw up that will keep us from getting to what actually happened, happens," Lindsay told the judges.

Now it's up to the Superior Court to see if the AG's office continues to get away with their coverup.