PITTSBURGH -- A defense motion asking a judge to dismiss child sexual abuse charges against former Penn State assistant football coach Jerry Sandusky is premature because there are no "facts" in the form of sworn testimony on which to base the request, state prosecutors said Friday.
Sandusky's attorney asked Centre County Judge John Cleland to dismiss the charges last week, arguing some counts are too vague to defend and others involve victims whose identities haven't been determined.
But Chief Deputy Attorney General Frank Fina said in his 12-page response that the defense's arguments are based on "assertions," not "facts," because there's been no sworn testimony in Sandusky's case.
"The absence of a factual record requires this Court to deny those requests," the prosecutor wrote.
Fina also argued that because Sandusky waived his right to a preliminary hearing -- thus acknowledging prosecutors had sufficient probable cause to take the charges to trial -- dismissing the charges now would effectively nullify the waiver.
Sandusky, 68, faces 52 criminal counts for the alleged abuse of 10 boys over 15 years, allegations he has repeatedly denied. School officials' response to the charges last year ultimately led to the firing of head coach Joe Paterno.
Sandusky's attorney, Joe Amendola, did not immediately return a call and email seeking comment on Friday.
But in his filing last week, Amendola attacked the charges related to a person described in court records as Victim 2, as well as other victims.
As just one example, Amendola argued that the charges involving Victim 2 can't be sustained based on the testimony of Mike McQueary, an assistant football coach who has said he saw Sandusky sexually abuse the boy in a team shower. Prosecutors listed the date of that offense as March 2002 until last week, when the attorney general's office amended the complaint to February 2001.
But McQueary's testimony came at a preliminary hearing in December for two Penn State administrators accused of lying to a grand jury and failing to properly report suspected abuse -- not in the case against Sandusky.
Fina, the prosecutor, argued that the judge can't grant Amendola's request because McQueary hasn't testified in Sandusky's case yet, nor have any other witnesses. There's been no pretrial testimony because Amendola and Sandusky waived the preliminary hearing and dropped some other pretrial motions that would have required testimony.
Bruce Antkowiak, a criminal law expert at St. Vincent College near Pittsburgh, said the prosecutor is correct in saying it's premature for Sandusky to ask that the charges be dismissed.
Although Antkowiak disagrees with the prosecution argument that Sandusky has waived his right to challenge the charges because he waived his preliminary hearing, the "significant point is there is nothing upon which the court can rule now" because there's been no testimony, he said.
"Certainly, once the government rests its case (at trial) a defense attorney can make that argument that because the charges are all over the place and they're so completely amorphous there's no way to respond to them," Antkowiak said. But the former federal prosecutor and defense attorney said there's no evidence on which to base those arguments yet.
A spokesman for the state prosecutor declined to comment.
The prosecution response also addressed Amendola's argument based on an unrelated case involving a 22-year-old mentally challenged victim who testified he had been sexually abused but "could not give any indication as to the time of year, the month, day, or date when the crime occurred." Amendola has argued some of the allegations against Sandusky are so vague time-wise that his right to present an alibi and other defenses is being compromised.
An appellate court reversed the conviction in the case Amendola cited, but Fina argued that happened post-trial -- once the court had testimony and other evidence to consider -- not before the trial. The prosecutor also noted that Sandusky's case is different from the one Amendola cited, which involved allegations of a single act of abuse against one victim.
"Here, this Defendant (Sandusky) is responsible for a sad catalogue of assaults perpetrated on numerous victims of the course of the Defendant's entire career," Fina wrote.
Jury selection is scheduled to begin in Cleland's Bellefonte courtroom on June 5.