By Frank Parlato
This hearing was the single greatest threat to the prosecution’s case and the NCAA’s timeline.
In Pennsylvania, a preliminary hearing gives a defendant the right to review the Commonwealth’s evidence, identify the accusers, and test whether there is sufficient cause to proceed to trial.
Recovered Memories and Shifting Stories
Most of the men who accused Jerry Sandusky did not allege any abuse until years later, after their civil attorneys arranged for therapy involving claims of repressed and recovered memory — a process said to have helped them “remember” abuse long forgotten.
Several accusers gave statements that changed significantly from their initial police interviews to their grand jury and trial testimony. A preliminary hearing would have fixed their accounts under oath and allowed the defense to cross-examine on any later changes.
The Missed Opportunity
The preliminary hearing, set for December 13, 2011, at 9 a.m., was the only proceeding where the defense could have tested these allegations before a jury heard them.
At that hearing, the defense could have identified inconsistencies — including “victims” who the prosecution could not identify or locate (#2 and #8), overlapping accounts that conflicted with one another (#1 Fisher and #9 Paden), alleged locations that did not exist at the time of the claimed events (such as Kajak’s reported “sauna”), and witnesses who initially denied any abuse before later revising their statements during therapy (Simciscko, Struble).
At the preliminary hearing, defense counsel could question the alleged victims about their mental health histories, criminal backgrounds, the number and nature of police and prosecutor interviews, changes in their accounts, exposure to suggestive psychotherapy, and any involvement of civil attorneys pursuing financial claims based on “recovered” memories.
The Daubert Challenge That Never Came
A preliminary hearing could have led to a Daubert challenge — requiring the prosecution to demonstrate that so-called “repressed memory” evidence met scientific standards of reliability. Such a hearing would have addressed whether the theory, widely associated with the “Satanic Panic” era, had been discredited by leading psychological associations, which have found that traumatic events are not forgotten – but just the opposite – they are remembered.
At a Daubert hearing, defense counsel could have called memory experts such as Dr. Elizabeth Loftus, whose research shows that memory is highly malleable and authority figures, including therapists, can shape memories.
The defense could also have subpoenaed the therapists’ notes and methods. If those records revealed leading questions (“Did he touch you here?”), hypnosis, or other suggestive techniques, the court could have ruled the resulting “recovered memories” inadmissible — and the key accusers’ cases might have collapsed as a result.
A Daubert hearing would likely have caused substantial delays — requiring expert scheduling, extensive briefing, and possible interlocutory appeals that could have extended the case for months or even years.
The Hilton Garden Inn Meeting
Hours before the scheduled preliminary hearing, Judge John Cleland convened a special hearing. He did not hold it in court but instead chose a small conference room at the Hilton Garden Inn in State College.
On the evening of December 12, 2011, Judge Cleland met with prosecutors Frank Fina and Joe McGettigan, and defense counsel Joe Amendola. No court reporter was present. Judge Cleland made no official record. Sandusky, the defendant, was not in attendance.
The Bail Bargain
During that meeting, Amendola agreed to waive Sandusky’s right to a preliminary hearing in exchange for the prosecution’s representation that it would not seek an increase in bail.
The threat to raise bail had no real basis. Sandusky was under home confinement, monitored electronically, and presented no credible risk of flight or danger to the community. Any attempt to increase his bail could have been contested before the magistrate and appealed to the Court of Common Pleas.
The agreement accomplished one thing: it eliminated the preliminary hearing that could have tested—and potentially undermined—the prosecution’s case.
The Rush to Judgment
During the hotel meeting, Judge Cleland set an expedited trial schedule.
The practical effect was to align the proceedings with Penn State’s institutional interests—avoiding the risk of NCAA sanctions, including the potential “death penalty,” which could have cost the university and the surrounding economy hundreds of millions of dollars.
A drawn-out trial revealing evidentiary weaknesses would have prolonged the scandal into the football season; a rapid conviction served to contain the damage and stabilize the program.
Safeguard Surrendered
By waiving the preliminary hearing, defense counsel relinquished the opportunity to challenge the admissibility of “repressed memory” evidence before trial. As a result, the scientific validity of that theory was never tested in court, and the jury ultimately heard it without challenge.
The Daubert hearing—the mechanism for examining such evidence—was the key safeguard. It was surrendered quietly in that hotel room.
With that single off-the-record decision, the course of the case was set.
Seven Months from Indictment to Trial
From indictment to trial: seven months — an exceptionally rapid pace for a case of this complexity.
The defense repeatedly stated it was unprepared, lacking essential information such as dates, timelines, and the full identities of accusers. Ten days before trial, prosecutors produced approximately 12,000 pages of discovery, much of it unlabeled and disorganized. Judge Cleland denied multiple defense motions for a continuance.
When defense counsel moved to withdraw, the court denied the request.
A Trial That Couldn’t Wait
Amendola might have said: “Your Honor, my duty is to provide competent representation. We have not had time to investigate witness statements, retain experts, or review the discovery just produced. You have denied every request for time. If that means holding me in contempt, so be it — my duty to my client must come first.”
But Amendola did not say that. He should not have been surprised by the rushed trial. He had agreed to it seven months earlier, in that Hilton Garden Inn conference room.
And so, despite being unprepared—and having created the very conditions for that unpreparedness by agreeing to waive the preliminary hearing and accept a rapid trial schedule—Amendola proceeded to trial.
Jerry Sandusky was convicted and sentenced to 30 to 60 years in state prison.
The trial lasted less than two weeks. It began and ended in June 2012 — just in time for the upcoming football season to proceed without interruption.
With Sandusky convicted, the NCAA deemed the matter resolved, allowing Penn State to continue its program under heavy sanctions and financial penalties.
The Secret Revealed
The Hilton meeting remained undisclosed until 2016, four years after Sandusky’s conviction.
When it finally surfaced, Judge Cleland expressed indignation.
After previously denying every motion for recusal, he ultimately stepped down—stating that he did so “to err on the side of demonstrating fairness,” even as he complained that the defense had “impugned the integrity of the court.”
A Case on Fast Forward
The seven-month span from indictment to trial in the Sandusky case was unprecedented for a case of its scope and complexity.
For comparison:
- Phil Spector (murder): 3 years, 4 months
- Elizabeth Holmes (fraud): 3 years, 3 months
- Casey Anthony (child murder): 2 years, 7 months
- Oklahoma City Bombers (domestic terrorism): ~2 years
- Harvey Weinstein (sexual assault): 1 year, 8 months
- Bill Cosby (sexual assault): 1 year, 6 months
- Jerry Sandusky (sexual abuse): 7 months.
In a single unrecorded meeting, Sandusky forfeited the only hearing that could have examined the reliability of the evidence, exposed potential judicial coordination, and tested the NCAA’s influence behind the scenes.
Justice Behind Closed Doors
Judicial conferences are meant to occur in court, on the record, and subject to public scrutiny. Yet in this case—one followed by hundreds of media outlets from around the world—the pivotal meeting took place in a hotel conference room.
The propriety of that meeting was later raised in one of Sandusky’s appeals. But as appellate history shows, the standard applied to Sandusky’s case was far stricter than what might be expected in a lower-profile prosecution.
Frank Parlato is an investigative journalist, media strategist, publisher, and legal consultant.
