IN
THE
COURT
OF
COMMON
PLEAS
OF
DAUPHIN
COUNTY,
PENNSYLVANIACRIMINALDIVISIONCOMMONWEALTH
OF
PENNSYLVANIA,
v.
No. CP-22-CR-5164-2011GARY
C.
SCHULTZ,
Defendant.
BRIEF IN
SUPPORT
OF MOTION FOR SEVERANCE
AND NOW, comes
the
defendant,
Gary
C.
Schultz, by
and
through
hisattorney, Thomas
,J.
Farrell, Esquire,
and
the
law
firm
of
Farrell
&
Reisinger,
LLC,
and
files
this
Brief inSupport
of his
Motion
for
Severance
and states
the
following
in
support:
Background
Defendant GarySchultz
is
charged
in
a
two-count
criminalinformation with,
at
Count
One,
Perjury in
violation
of
18
Pa.C.S.A
§
4902(a), a felony
of
the
third-degree,
and at
Count
Two,
PersonsRequired
To
Report Suspected
Child
Abuse,
in
violation
of
23 Pa.C.S.A.
§
6319, a
summary
offense.
His
case
has
been
consolidated
with
that
ofTimothy
Curley,
who
faces
the
same
charges.
On
January
12, 2011,
Messrs.
Schultz
and
Curley testified
separately
before
the Grand
Jury
regarding
their
knowledge
aboutallegations of
child
sexual
abuse
by
one
Jerry
Sandusky.
During
his
testimony, Mr.
Curley several times implicated
Mr.
Schultz
by
name
and
title,
and
Schultz
likewise
named
Curley. A copy
of Mr.
'
~-:
4
_,
'
Curley's
Grand
Jury
Testimony
is
attached as
Exhibit
A,
and
a copy
of Mr.
Schultz'testimony
is
attached as
Exhibit
B.
They
also
gave
statements
duringpre-testimony interviews
that
day,
which are
attached
as Exhibits
C
and
D.
Underthe
Confrontation
Clause, Mr. Curley's testimony,
shouldhe
choose
not
to
testify,
is
inadmissible
against
Mr.
Schultz.
The
prejudice
stemming
from
its
admission,
even
if
redacted,
cannot
be
prevented
by
a
limiting instruction. The
only
way
to
guarantee
Mr.Schultz's
Sixth
Amendment
Confrontationrights
is
to
sever
thistrialandtry
each defendantseparately.
In
addition,
the
perjury
counts
against
Curley
and
Schultz
do
not
arise
from
the
same
acts
or transactions,
as
thejoinderrules of
Rule 582
require.There
is noconspiracy
charge
and
no
evidence of
any
collusion. To
the
contrary, the
particulars
ofeach
one's
allegedly
false
statement
differ
considerably. This misjoinder
also
warrantsseverance.
Argument
I.
The
Defendants'
Grand
Jury Testimony
And
StatementsImplicating Each
Other
Are
So
Worded And
SoInterlocked
That
Any Redaction
Will
Fail
The
Constitutional Test OfPreservingNarrative Integrity
AndYet
In
No
Way
Referring
To The Other Defendant;Therefore, The Confrontation Clause
Requires
That The
Defendants'
Trials
Be Severed.
A.
Standards
For
Severance.
Severance
of
codefendantsis permissible, "if
it
appears
that
any party
may
be
prejudiced
by
...
defendants
being
tried
together."Pa.
R.
Crim. P.
583.
The
decision
to
sever
a
trial
of
co-defendants is
within
the
sound
discretion of
the
trial
2
court.
Commonwealth
u.
Morales,
508 Pa.
51, 61,
494
A.2d
367,
372
(1985).
Thecritical question is
whether
a
defendant
will be
prejudiced
by
a
joint
trial.
Commonwealth
v.
Chestnut,
511
Pa.
169, 175,
512 A.2d
603, 605 (1986).
The
admission
of
a non-testifYing
codefendant's
confession
at
a
joint
trialpresents
a
particular
problem, because
a
defendant's
right
to
confront
a
witness
against
him
under
the Sixth
Amendment
is
violated
by
introducing
a non-testifYing
codefendant's
confession
which
implicates the
defendant
as
a
participant in
the
crime.
See
Bruton
u.
United States,
391
U.S.
123, 131 (1968).
In
Bruton,
the Supreme Courtheld
that
introduction of such
evidence violates
a
defendants' Sixth Amendment
confrontation
rights
even
if
the
court instructs the
jury
that
it
may
onlyconsider
the
statementagainst the
non-testifYing
codefendant.
Bruton,
:391
U.S.
at
125.
Where
the
co-defendant's
statements
implicatethe defendant,
"the risk
that
thejury
will
not,
or
cannot,
follow
instructions
is
so
great,
and
the
consequences
of
failure
so
vital
to
the
defendant,"
that
only
severance
will
avoid
a
Confrontation Clause
violation.
I d.
at
135.
In
light
of
Bruton,
introduction
of
Mr.
Curley's
grand jury
testimony
and
statements
would violate Mr.Schultz' Confrontation Clause
rights
should
Mr.
Curley
choose
not
to testifY. Accordingly,
this
Court
shouldsever thetrials.
B.
The
Standard
For
Permissible Redaction
is
a
Strict
One.
This
result
should
stand
even
if
Mr.
Curley's
grand jury
testimony were
to be
redacted
to
substitute
a
neutral phrase
or
pronoun
in
order
to
disguise Mr.
Schultz'
3
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