JoePa death may affect Penn State trials

The sad passing of Joe Paterno, 85 a lion of a man whose final two months on earth were spent in disgrace, will have an impact on the criminal cases pending in Pennsylvania against Penn State University officials and former coach, Jerry Sandusky.

Former Athletic Director Tim Curley and ex-VP of Operations Gary Schultz were indicted when they were caught up in the grand jury investigation of Sandusky and alleged child sex and molestation allegations. The grand jury indicted Sandusky on 40 counts of child endangerment and slapped Curley and Schultz with perjury charges, resulting from their testimony.

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Helping prosecutors to secure indictments against the Penn State employees were both assistant coach Mike McQueary and legendary football coach Joe Paterno. Both testified before the grand jury and supplied statements to investigators that contradicted Curley and Schultz’s accounts of what they knew of a 2002 incident on the Penn State campus witnessed by McQueary.

Jerry Sandusky, according to Mike McQueary’s testimony was molesting a young boy in the shower room of the football complex in a scene that still makes him shudder. He was a graduate assistant to Paterno at the time and after conferring with his father, told JoePa what he knew the very next day.

Paterno called Curley and reported what McQueary saw, but it is the words used by the elderly football coach that helped lead to the perjury indictments. Curley and Schultz deny that what they were told was specific enough to understand that a crime might have been committed, leading them to keep their investigation in-house.

Mike McQueary met with the two face-to-face after the men had spoken to JoePa and he acknowledges that he was more graphic while facing them than he was when telling his football coach and boss. It was out of respect, McQueary said, for Paterno and what he thought were his delicate sensibilities that he didn’t use the words rape or penetration.

The grand jury decided that Curley and Schultz weren’t credible in their testimony and neither McQueary nor Paterno were indicted or charged in any way. They had performed their legal duty.

Whether or not it was the only thing they could have done to get the information in front of police is at the heart of why Paterno was fired and McQueary placed on administrative leave within days of the indictments being handed down.

Public outrage about the young boys who were allegedly harmed for seven years after the Penn State shower incident brought the university to do the unthinkable — fire Joe Paterno.

If Curley and Schultz do not plea bargain with prosecutors a jury trial will be a certainty. Paterno will be unavailable in person but his grand jury testimony can be used and read into the record.

There can be no cross examination by defense counsel and the defendants will never know if JoePa would have been able to stay steadfast in his testimony, or be confused and equivocate.

Recent comments by JoePa made during a Washington Post interview with Paterno regarding his unfamiliarity with the concept of men being capable of being raped will most likely not be allowed to be spoken in front of a jury. Had Paterno lived and was not too sick to testify, parts of that interview that could aid the defense would have been part of the cross examination.

While McQueary held up well when he testified and was grilled on cross during the preliminary hearing for the two former university employees, the burden of losing Paterno to buttress his statements could feel like a ton of bricks.

Used with permission of the author.

Paula Duffy is a national sports columnist for Examiner.com and the Huffington Post and regularly comments on sports/legal matters for radio affiliates of ESPN and Fox Sports. She founded the sports information site, Incidental Contact, is the author of a line of audio books designed for sports novices and in her spare time practices law in Los Angeles. 

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