The day after Jerry Sandusky’s conviction, his trial attorneys informed the press that they were not adequately prepared to defend him because his case was brought to trial so quickly. Sandusky was tried seven months after he was arrested. Sandusky was convicted on 45 counts of child sex abuse. There were many witnesses involved in the case, making Sandusky’s attorneys argument for more time to prepare a viable issue on appeal. His trial lawyers have explained that thy will not be representing him on appeal because they will likely have to testify at a hearing addressing his claim of ineffective assistance of counsel.
This issue will be central to Sandusky’s appeal. In his initial brief, his appellate attorney will have to address the number of continuances requested by his defense team and why these continuances were denied by the trial court. This was a high profile case and involved many witnesses, so it is conceivable that his defense team needed several months to prepare his case. Another important aspect of his appeal will be the disclosure of evidence. If the defense team received some of the discovery from the State at the last minute or on the eve of trial, his appellate lawyer could show prejudice.
However, Sandusky claim that he received ineffective assistance of counsel during his trial is generally not appeal-able in a direct appeal. Claims of ineffective assistance are usually raised in a post conviction motion that is filed after the initial appeal. When an appellate attorney in South Carolina raised ineffective assistance of counsel, it is done in a Post Conviction Relief (“PCR”) Motion. In Strickland v. Washington, the United States Supreme Court established a two-prong test for establishing a claim of ineffective assistance of counsel. A criminal appellant must show that 1) counsel’s performance fell below an objective standard of reasonableness and 2) there is a reasonable probability that the results of the trial or the sentencing hearing would have been different “but for” counsel’s deficient performance.
In South Carolina, these PCR motions are heard by the trial court. Usually, at the hearing, the trial attorney testifies and is questioned by the defendant’s South Carolina appellate attorney. However, before a PCR is filed, a criminal defendant usually proceeds with a direct appeal to the South Carolina Court of Appeals. If the case is a federal, a South Carolina federal appellate lawyer files an initial brief is the United States Court of Appeals for the Fourth Circuit.
In order to start the appellate process, a notice of appeal must be filed. A South Carolina Appellate Lawyer then orders the transcripts from the trial or other proceeding. Once the transcripts are received, the appellate lawyer in South Carolina then drafts the initial brief, citing to the the lower court record. In the Fourth Circuit Court of Appeals, a scheduling order is issued to the federal appellate lawyer, notifying counsel of the date the brief is due.
Sandusky will likely raise multiple issues in his appeal, and will likely seek a new trial on all counts and will ask the appellate court to reverse his conviction and sentence.