Why the Preliminary Hearing Exposed the Case Against Penn State as a Fraud

It is rather amazing and illuminating that so much new has happened in the last couple of weeks of the so-called “Penn State Scandal.” After all, since most of the possible punishments have already been decided and enforced (possibly permanently), you would think that we would already know the vast majority of knowledge available regarding what actually did, and did not, happen. Obviously, the fact that this is clearly not the case, proves, if nothing else, that there has been a massive and irrational rush to judgment in this story. 

In only the last couple of weeks, here is just some of what we have learned:

• That Joe Paterno gave an interview to the attorney general’s office just two weeks before he was fired in which he directly contradicts the key “cover up” email in the Freeh Report and raises the likelihood that Freeh purposely withheld exculpatory evidence from the report.
• That the date of the so-called “janitor” episode, which Freeh used to condemn the “Penn State Football Culture,” which was supposedly late November of 2000, could apparently not have been witnessed by the now-demented janitor at that time because he did not seemingly start working there until late December of that year.
• That Mike McQueary now has yet another, at times very contradictory, version of his story and has now augmented it to include seemingly important comments from a now-deceased Joe Paterno (which he never mentioned in previous testimonies after the conversations, but before Paterno passed away).
• That the prosecution is so concerned about the real story of Victim 2 that they vigorously prevented their witness Agent Anthony Sassano from even answering whether he knew the identity of that person on two different occasions.

And yet, in the media’s simple mind, this case is already closed and, except for a couple of cherry-picked/out-of-context/alleged statements from Paterno, nothing particularly new or interesting has recently occurred.

As for the preliminary hearing in particular, contrary to highly-predictable media reaction, I actually think that it went about as well as could have been expected for the defense.

First of all, the rules of engagement for a preliminary hearing, even under normal circumstances, are extremely detrimental to the defense. The burden to move forward is extremely low and the defense can not call witnesses and is tremendously restricted even what they can ask.

In this particular case the situation was even worse for the defense because the judge was never going to endure the media’s wrath by dismissing the charges (I am told that he didn’t even read the defense argument for dismissal and already had the paperwork for trial ready to go before the hearing was completed) and the witnesses were all under similar pressure to give the prosecution/media exactly what they wanted.

Even with all of that against them, it seems as if the defense exited this hearing with almost no legal damage and plenty of reason for optimism should the case ever actually go to trial. I say this as much for what was not presented at the hearing as I do for what was offered into evidence.

If ever there was a situation where silence spoke volumes, this is it (it should be pointed out that unless and until one of the defendants “flips” on the other, then a “cover up” can never be credibly alleged, so “silence” is always good for the defense). Other than McQueary’s latest version of events, the prosecution, despite a huge incentive to do so, provided absolutely nothing new and showed its legal case to be “shockingly” weak. In his closing the lead prosecutor kept hammering on the one email from Graham Spanier (the infamous “humane” email) as all the evidence they needed to prove the case, which is absurd since the email could just as easily be seen as proof that they had no idea that a sex act/crime had been committed.

Instead, it appears the entire preliminary hearing was, by design, nothing more than a media event whose entire purpose was to assassinate characters and to give the prosecution cover in case they are forced to later dismiss the charges. I do not say this as idle speculation, but rather because this scenario fits with both how they chose to conduct the hearing as well as the most likely outcome of the “Cynthia Baldwin” issue, which most legal experts expect will eventually result in the case being gutted from a law perspective.

Many of the witnesses, such as Spanier’s communication director Lisa Powers, had no relevance to the case at all and were clearly asked to testify simply to make the defendants look like bad people with something to hide (the notion that Powers would make it on the incredibly short witness list may be the best indication of just how anemic their case really is). In Powers’ situation, her testimony was particularly ridiculous because she kept saying that Spanier was keeping her in the dark about the Sandusky situation, when in fact she had been included in key emails and had been asked for her opinion on how to respond publicly. The entire issue was absurd because it was also shown that Spanier had been given notice by the attorney general’s office not to speak about his grand jury testimony, so the prosecution was effectively condemning him for adhering to their own declaration!

Even on issues where the prosecution tried to prove already well-known allegations, they basically struck out. For instance, on the notorious “secret Sandusky file” which Gary Schultz was supposedly keeping hidden, it was proven that he received it by mistake and immediately returned it. While I am not yet comfortable with everything Schultz did and didn’t do here, it seems clear that his proper actions in this situation are the primary reason why Louis Freeh was even able to make his crazy “cover up” allegation because that’s how the key emails were discovered. Similarly, the prosecution’s bizarre focus on the “unfounded” 1998 episode went nowhere and it was even proven that Spanier was out of the country and very likely never even saw the two emails he was cc’d on during that time period.

As for McQueary, it is getting even more difficult to fully comprehend what is actually going on there. It is possible that we simply now know too much to make any remotely logical theory fit within what appears to be all of the known evidence. However, there are a few important things that we can discern from McQueary’s latest testimony.

First, there is now no question that McQueary has testified to things which are not true because he has directly contradicted himself, not just from a logical perspective, but from a literal one as well. Perhaps the most dramatic example of this from his most recent version of events deals with conversations he allegedly had with Joe Paterno about the Sandusly matter. Most notably, McQueary now suddenly claims that he spoke with Paterno “every year” and sometimes more than that about his concerns regarding Sandusky.

However, in December of 2011 he testified (while Paterno was still alive and able to contradict him) very clearly on page 39 of that transcript that he never spoke to Tim Curley, Gary Schultz, or Joe Paterno again about Jerry Sandusky. He then clarifies to indicate that in the months after that Paterno came to him a “couple of times” to see if he was okay with how it was handled, but there was no mention of this decade-long ongoing conversation with Paterno. There was also absolutely no discussion of what was supposedly discussed between Paterno and McQueary on the day that Paterno was fired.

Very importantly, in that December 2011 testimony McQueary also makes it exceedingly clear (on page 104 of that transcript) that he did NOT express concerns about Sandusky hanging around the program until AFTER he had been spoken to in late 2010 by the attorney general’s office. When asked, “The questions you say you raised with people about why Jerry was still around there, did you raise that question before or after you were contacted by agents of the attorney general’s office?” McQueary replied, “Almost certainly after.”

This is not just extremely significant because it brings his latest version into grave question, but also because it goes a long way in confirming my theory of events which includes McQueary having changed his mind twice about what he saw, changing it back after being told by authorities that Sandusky was a pedophile and that they needed his help to convict him (it also happens to perfectly dovetail with Sandusky’s claim to me that McQueary’s behavior towards him changed significantly for the worse around that time period).

This December 2011 testimony from McQueary also has several other “gems” which, in a rational world, would have destroyed his credibility. Not only does he somehow completely butcher the day/month/year of the event (a fact whose significance can not be underestimated, especially now that McQueary is trying to claim that this issue was a source of constant concern to him for the full decade), but he also says the following things:

On page 111 of the transcript he claims that “without a doubt” he avoided contact with Sandusky after the event, even though we now have credible evidence that he played in multiple Second Mile golf tournaments and joked around with him at a charity football game after that (tellingly, the prosecution strongly objected to this line of questioning by the defense and McQueary never was allowed to go into detail).

On page 107 of that transcript McQueary says that he thought of Gary Schultz as being in charge of the local police and that he saw him as law enforcement. He says he based that on having seen Schultz interact with police during some racial “riots” at Penn State. However, those “riots” occurred two months after the incident where he saw Sandusky in the shower with a boy, a fact which was not known at the time because McQueary got the year of the incident wrong. This obviously brings into question both McQueary’s memory and honesty since it goes to his alleged mindset when he met with Schultz.

In that same testimony, McQueary says that on the night of the incident he was going to bed on a Friday (he mistakenly thought for sure it was the Friday before Spring Break, which the prosecution used to try and show to the grand jury that Sandusky had an expectation of “privacy”), started to watch the movie Rudy and got “inspired” to go get some recruiting tapes. However, he would have had to have left his residence by 9:15pm at the very latest and programming guides indicate that the movie started at 8:30pm that night (so McQueary goes to bed at 8:30pm on a Friday and gets “inspired” by the first half hour of Rudy?!).

Also, on page 59 of the same transcript McQueary is asked, “But you can say for certain that you did nothing to alert those in the shower that you were there?” and he responded, “That’s right. I did nothing.” This is perfectly consistent with both Sandusky’s as well as Victim 2’s version of what happened, but contradicts his other testimony that he made clear eye contact from close range with both Sandusky and the boy.

This leads me to what is in my view the most significant moment of the entire preliminary hearing. When Agent Sassano was on the stand being cross-examined by the defense he was asked a very simple and relevant question: do you know the identity of Victim 2? He was not asked to actually identify the only victim who actually matters in this case, but only whether he knew the identity of this person.

I am told by three different people who were in the courtroom that Sassano was immediately dumbstruck as to how to respond and looked desperately at the prosecution table for help. The prosecution then bailed him out by vigorously objecting to this very relevant question and the judge, as he did with just about every single prosecution objection, sustained it. Then the defense asked a similar question about Victim 2 and the very same process was repeated.

Think about how absurd that is. The defense was not allowed to even ask whether the lead agent even knew the identity of the victim supposedly at the heart of the case. The reaction of both Sassano and the prosecution tells you everything you ever needed to know about just how vulnerable they know they are on this issue. This is why they never asked Victim 2 to testify after having interviewed him at least twice. They know that he has been strongly on the record directly contradicting McQueary’s testimony and it seems from their most recent over-the-top reaction to his mere existence even being mentioned, that, as I have been saying all along, they have no reason to think that he has dramatically changed his story in their direction.

Hopefully this will indeed go to a real trial when such issues can (and I understand will) finally be brought out in a way which even the news media will find it difficult to ignore, though I still fear that the prosecution will get to save face by being forced to dismiss the case on a “technicality.” I am quite sure the media will be more than willing to do their clean up work for them under that scenario.

As for McQueary, I have tried very hard to be rational and understanding of his version of events. Every time he does something “good” like saying Paterno “handled the whole thing great” or finally take some responsibility for not doing the same himself, he goes and seemingly makes up a new portion of the story in a way which makes you question everything about him.

As I wrote in my book The Betrayal of Joe Paterno, Scott Paterno has made it very clear that, apparently as part of a political maneuver, the family will never say anything negative about McQueary. I have explained previously why I think that is both a strategic and moral mistake, but I am personally getting to the point where I could believe a far more nefarious interpretation of his actions than I ever have previously (for the record, I am told that Sue Paterno strongly believes McQueary lied about Joe Paterno in his most recent testimony).

As far as the disgraceful media is concerned, an episode reported by Kevin Horne of Onward State says it all. While “covering” the press conference of Curley’s fiery attorney Caroline Roberto, an as-yet-unnamed male “reporter” got frustrated with her and loudly exclaimed, “We’re going to report whatever we want to report!” Apparently Roberto appropriately responded that given the nature of the coverage to date, that was already obvious.

If there was one small episode which sums up this entire case to date, that one just might be it.