South Florida Criminal Lawyers Blog

In a year in which scandals and NCAA violations have rocked college football, Penn State finds itself embroiled in a criminal investigation that dwarfs any scandal that has ever hit a university in the history of college athletics. So serious are the accusations leveled against Penn State officials, that it is inappropriate to label the incident a mere "scandal." According to a grand jury report, Gerald A. Sandusky, who served for 23 years as the Defensive Coordinator for the Penn State Nittany Lions, sexually abused at least 8 children over a 15-year-span. What is more, some of this abuse allegedly occurred in the Penn State football facilities, while Sandusky served both as a Penn State coach and as a Penn State professor emeritus. Furthermore, Tim Curley, the Penn State Athletic Director, and Gary Schultz, Senior Vice President for Finance and Business at Penn State, allegedly lied to the grand jury investigating Sandusky.

However, the prosecution's case against Athletic Director Curley and Vice President Gary Schultz suffers from a serious weakness: it hinges upon the credibility of Penn State Football Coach Joe Paterno and a former Penn State graduate assistant, both of whom have serious credibility issues.

To understand the prosecution's difficulty, it is best to start with the prosecution's theory of the case against Curley and Schultz. According to the grand jury report, an unnamed graduate assistant witnessed Sandusky sodomize a young boy in the showers of the football locker room at Penn State. The graduate assistant contacted the head football coach, Joe Paterno, who then contacted Curley. Allegedly, the graduate assistant told Curley and Schultz everything that he saw, but Curley and Schultz never notified law enforcement, never attempted to identify the young boy, and simply told Sandusky that he was no longer allowed in the locker room and was no longer allowed to use athletic facilities with young children. What is more, when questioned by the grand jury, Curley and Schultz allegedly lied, claiming that the graduate assistant never informed them that Sandusky had committed a deviant sexual act with a child in the Penn State locker room.

Thus, the prosecution's case will hinge on the credibility of the graduate assistant and Joe Paterno, who both allegedly informed Curley and Schultz of Sandusky's actions. However, a closer look at the conduct of Paterno and the graduate assistant quickly raises doubts about the credibility of both.

First, compare and contrast the actions of Joe Paterno with those of Steven Turchetta, the Assistant Principal and head football coach at Central Mountain High School. When Turchetta learned that a student at his school had accused Sandusky of sexual abuse, Turchetta immediately contacted the police. Not only did Turchetta comply with Pennsylvania's reporting requirements under 23 Pa.C.S. §6311, but he did what is expected of an educator and a coach: he did the right thing and he protected the victim.

On the other hand, the head football coach at Penn State, Joe Paterno, did not call authorities when he learned that Sandusky, who at the time was a Penn State professor emeritus with unfettered access to Parterno's program, was "fondling" a young boy in the football locker room. While Paterno has released a statement claiming that he was never informed of the "very specific actions contained in the Grand Jury report," Paterno did testify to the Grand Jury that he was told by a graduate assistant that the assistant "had seen Jerry Sandusky in the Lasch Building showers fondling or doing something of a sexual nature to a young boy."

Thus, at a minimum, despite learning that Sandusky fondled a young boy in the Penn State Football locker room, Paterno did nothing more than contact the school's Athletic Director. He did not contact the police or campus security; he made no attempt to identify the young boy; and he made no attempt to determine whether a sexual predator was using his facilities to victimize children. At best, Paterno acted with indifference to the allegations. In football terminology, he simply punted the issue to the Athletic Director. Despite Paterno's minimum and indifferent response to an accusation of "fondling," he has publicly stated that he did "what I was supposed to do."

Worse still, the graduate assistant who actually witnessed the sodomy of a young boy never called law enforcement. According to PennLive.com, the graduate assistant is no other than current Penn State Wide-Receivers Coach Mike McQueary. According to his grand jury testimony, McQueary heard "rhythmic, slapping sounds" in the football locker room and saw a naked Sandusky engaging in anal intercourse with a young boy, whom McQueary estimated to be 10 years old. Despite seeing a young boy, with his hands up against the wall, subjected to the worst kind of sexual violation, McQueary did not attempt to interject; he did not scream for help; he did not call 911; he did not attempt to help the boy in any way whatsoever. The next day, instead of going to the police, McQueary went to the home of Joe Paterno.

If Joe Paterno is to be believed, Mike McQueary did not tell Paterno about the anal intercourse, but simply characterized the abuse as "fondling" or "something of a sexual nature." However, according to the grand jury report, McQueary "went to Paterno's home, where he reported what he had seen." If, as the report implies, McQueary testified to the grand jury that he told Paterno everything, then either Paterno or McQueary isn't telling the whole truth.

Which leads to an interesting problem with the prosecution's theory of the case: Paterno's and McQueary's version of events appear contradictory, and their behavior is inconsistent with people who were honestly and openly reporting child abuse. At the least, McQueary's and Paterno's responses lead to interesting questions: If McQueary had actually witnessed the sodomy of a young boy and wanted to report it, why didn't he simply call 911? If McQueary honestly reported everything that he saw to Paterno, why did Paterno testify that McQueary only spoke of "fondling" or "something of a sexual nature?" If McQueary and Paterno were trying to honestly report abuse and do the right thing, why did Paterno and McQueary patiently wait a week and a half before McQueary met with Curley and Schultz? Similarly, if Paterno actually told Curley that Sandusky had allegedly fondled a boy in a Penn State locker room, why did the Athletic Director wait so long to question McQueary? Why is McQueary the only person claiming to have reported what he saw, when Paterno, Curley, and Schultz all deny that McQueary ever mentioned sodomy? If the answer to that last question is that Curley and Schultz were trying to cover up what they knew, then why isn't Paterno also charged with a crime?

In a criminal courtroom, it is not up to Curley and Schultz to answer these questions. It is the prosecutor's job of proving each accusation beyond and to the exclusion of every reasonable doubt. Typically, the version of events that is most consistent with all of the evidence leads to the truth. That path appears to lead to dark places for Penn State University, as well as for the prosecution's two main witnesses.