Whether two Penn State officials must go to trial in the university sex-abuse scandal may depend on precisely what they heard from Mike McQueary, the football coach who told a grand jury he saw a child being raped.
“It’s going to come down to what exactly McQueary said to them,” said Amy Marion, a Long Island, New York-based criminal defense attorney who has been watching the case.
Athletic Director Timothy Curley, 57, and ex-Vice President Gary Schultz, 62, are in a Harrisburg, Pennsylvania, court today for a hearing on whether there is enough evidence to try them. They are accused of perjury and failing to report a sex-abuse allegation against Jerry Sandusky, a coach. The men have denied the charges, which stem from their grand jury testimony.
Sandusky, a former defensive coordinator for the football team, faces more than 40 criminal counts tied to the alleged sexual molestation of eight boys from 1994 to 2009. He denied the accusations. McQueary told the grand jury that he saw Sandusky in a campus locker room shower engaging in anal sex with a boy who appeared to be 10 years old.
Prosecutors plan to call three to five witnesses for the hearing today, Senior Deputy Attorney General Marc Costanzo said in a phone interview. McQueary was the first witness called today.
McQueary, a graduate assistant at the time of the alleged incident, testified earlier that he called his father, who then told him to talk to Joe Paterno, the head football coach.
Call to Paterno
He called Paterno the next morning and went to his home to report what he had seen, according to the grand jury’s report released Nov. 5 when charges against Sandusky were announced.
Paterno testified that he called Curley to his home the next day and reported that McQueary had seen Sandusky “fondling or doing something of a sexual nature to a young boy,” according to the report.
McQueary told the same story in a meeting a week and a half later with Curley and Schultz, the grand jury said. Curley told McQueary a few weeks later that Sandusky’s keys to the locker room were taken away and the incident was reported to the Second Mile, a charity for needy children Sandusky founded in 1977.
At the heart of the case is the testimony given by Curley and Schultz to the grand jury in January. Curley denied that McQueary reported anal sex or anything of a sexual nature and termed the conduct “horsing around,” according to the grand jury report.
Schultz testified that Paterno reported “disturbing” or “inappropriate” conduct. Schultz was initially unsure about what he remembered the graduate assistant’s telling him, while later conceding the report was of inappropriate sexual conduct, according to court documents.
Neither Curley nor Schultz, who oversaw university police, reported the incident to law enforcement or attempted to learn the identity of the alleged victim, identified in the grand jury report as Victim 2.
Any variations in accounts McQueary gave outside and inside the grand jury room might affect the case, said Wes Oliver, an associate law professor at Widener Law School’s Harrisburg campus.
“The variety of different stories doesn’t really undermine the case against Sandusky, but it does undermine the case against Curley and Schultz,” Oliver said. “It’s entirely possible that he didn’t have the clarity when he spoke with them that he had when he spoke to the grand jury.”
Under the law, prosecutors will need two corroborating witnesses to say that Curley’s and Schultz’s testimony was false and they knew it. Constanzo declined to comment on whether Paterno will testify.
Paterno, 84, who coached football at Penn State for 46 years and won 409 games, the most among major-college coaches, was fired as a result of the Sandusky case. He hasn’t been charged with criminal wrongdoing. Sandusky waived a preliminary hearing Dec. 13 and will be tried on a date to be set.
Perjury, a felony, is punishable by as long as seven years in prison, Costanzo said.
“No matter how his inconsistencies look, there are a million reasons you can use to explain it,” Marion said of McQueary. “What would be his motive to make something like that up?”
The cases are Commonwealth of Pennsylvania v. Curley, MJ12303-cr-0000353-2011, and Commonwealth of Pennsylvania v. Schultz, MJ12303-cr-0000354-2011, Magisterial District Judge 12-3-03, Dauphin County (Harrisburg).