According to indignant alumni, the Penn State Board of Trustees confused two separate, unequal cases. One case was possible perjury before a grand jury by Tim Curley, the Athletic Director, and Gary Schultz, the senior vice-president in charge of the Penn State Police. The second case was the charge against Jerry Sandusky that he possibly sexually molested a young boy in the Penn State football-team shower room.
Curley and Schultz were suspected of lying to conceal discreditable behavior damaging to the reputation of the Penn State football program. Guilty or innocent, they face enormous legal costs to mount a defense against the perjury charge. If convicted, they will probably go to prison. But the evidence for the indictment for perjury is weak. It rests entirely on the grand jury testimony of assistant football coach Mike McQueary in the fall of 2011 about what he saw nine years earlier when he was in his early twenties. McQueary remembered being shocked when he accidentally observed in the shower room of the Penn State football team what appeared to be a former coach sexually molesting a pre-adolescent boy. Here is how the Washington Post described McQueary’s account of the 2002 incident when called as a witness in a District Court hearing last December 16:
In his testimony at the preliminary hearing for Tim Curley and Gary Schultz, McQueary said he believes he saw Sandusky sexually molesting a boy in the shower but was not 100 percent sure it was intercourse.
McQueary said he peeked into the shower several times and saw Sandusky with his hands wrapped around the waist of a boy he estimated to be 10 or 12 years old. He said both were naked, the boy was facing the wall, and that the last time he looked in, Sandusky and the boy had separated.
“I know they saw me,” McQueary said. “They looked directly in my eye, both of them.”
Tim Curley and Gary Schultz have both insisted publicly that, when McQueary told them in 2002 what had disturbed him, he did not mention anal rape, as some newspaper accounts reported. McQueary had told his story first to Coach Paterno in 2002, and Coach Paterno’s recollection of their meeting characterized McQueary’s report similarly. Here is what Joe Paterno said on November 6, 2011, about their 2002 meeting:
As my grand jury testimony stated, I was informed in 2002 by an assistant coach that he had witnessed an incident in the shower of our locker room facility. It was obvious that the witness was distraught over what he saw, but he at no time related to me the very specific actions contained in the Grand Jury report. Regardless, it was clear that the witness saw something inappropriate involving Mr. Sandusky. As Coach Sandusky was retired from our coaching staff at that time, I referred the matter to university administrators.
The grand jury accepted McQueary’s graphic report as a faithful account of what happened and what he told about it to Paterno, to the Athletic Director, Tim Curley, and to Gary Schultz, the senior vice-president. Curley, Schultz, and Paterno remembered the conversations with McCreary differently. According to all three of them, McQueary said nothing about anal rape, only that Sandusky and a preadolescent boy were showering together in the shower room and “horsing around.” Because the grand jury believed that McQueary was telling the truth and that Curley and Schultz were lying to minimize disreputable behavior at the University, it indicted Curley and Schultz for perjury. Whether or not they committed perjury has nothing to do with whatever Sandusky did or did not do to a boy in the shower room. (The grand jury did not explain why it did not also indict Coach Joe Paterno for perjury; his report of his conversation with McQueary was identical to the accounts given by Curley and Schultz.)
Questionable Indictments
The Board of Trustees apparently considered the indictments of Sandusky, Curley, and Schultz evidence of guilt. On the evening of November 9, the Vice-Chairman of the Board, John Surma Jr., made a vague public statement explaining why the Board fired Joe Paterno, the Athletic Director to whom he reported, the vice-president to whom the Penn State Police force reported, and the president of Penn State University itself.
We thought that because of the difficulties that engulfed our university, and they are grave, that it is necessary to make a change in the leadership to set a course for a new direction.
A jury would have to believe – despite an absence of corroborating evidence — that Coach Paterno and the two administrators lied independently to a grand jury about what McQueary told them in 2002 or conspired with one another to lie in order to protect the University from bad publicity. The jury would also have to believe that reputable University officials chose to cover up the rape of a ten-year-old boy. More plausible is faulty memories rather than lies. McQueary stumbled on what seemed to him improper and upsetting sexual behavior between a coach and a pre-adolescent boy, but he did not remember exactly what went on nine years earlier. Surely the defense attorneys will raise questions about how McQueary reacted to what he saw and what he heard during the 2002 incident. He did not claim to have heard the boy cry out, “Help!” although he said that the boy saw him. He did not claim to have himself shouted, “What’s going on here?” All he did was peek into the shower room three times and then go home and telephone his father. Paterno, Curley, and Schultz all deny receiving explicit information about an anal rape.
The perjury indictments have little to do with football at Penn State, only with the accusation that two reputable University administrators lied to a grand jury (for which they are potentially liable to be given long prison terms). The collateral damage of the perjury indictments – inflicted by the Board of Trustees — was the firing of Coach Paterno and of Penn State President Graham Spanier. Perhaps a prudent Board of Trustees should not have rushed to administer punishments. As one of my former students, now a senior executive of an organization in the professional sports field commented about the uproar at Penn State in an email:
Where is the adult in the room who says, “Hold on. We have a legal process and we need to follow it in the most routine cases and even for the most hideous ones. This case is no exception.”
The American system of criminal justice does not usually imitate the Queen in Alice in Wonderland, who enunciated the principle of “Sentence first, verdict afterwards.” Maybe current members of the Board never read that criminological classic or understood that Lewis Carroll was ridiculing arbitrary punishments. Maybe Penn Staters for Responsible Stewardship should distribute copies of Alice in Wonderland to all members of the Board of Trustees as well as to the new members they succeed in electing.
