Responding to charges of lying to a grand jury in the Jerry Sandusky investigation, former Penn State vice president Gary Schultz and former athletic director Tim Curley will try to convince a judge in Harrisburg, Pa., that there was a major difference between what Mike McQueary saw in the shower and what he told them about it.
The differences in McQueary's descriptions of the now notorious shower incident are so significant, the former university officials and their lawyers assert, that the charges of perjury are "unprovable and unfounded" and must be dismissed.
In more than 300 pages of legal briefs, they suggest that in a meeting 10 days after the incident early in 2001, McQueary gave them the impression that the shower incident was merely "horseplay," was "not that serious," and was at worst "inappropriate."
On Thursday morning in Courtroom No. One on the fifth floor of the Dauphin County Courthouse, in three scheduled hours of verbal sparring, the attorneys for Schultz and Curley will tell Judge Todd Hoover that their clients are being prosecuted not for deliberate falsehoods but for innocent opinions and beliefs. To prove perjury in Pennsylvania, both sides agree, the prosecution must show that the witness deliberately lied, knew he was lying, and lied to thwart the investigation.
A comparison of the former officials' grand jury testimony with the law's requirements for proof of perjury shows that the highly skilled and experienced lawyers, Thomas Farrell (author of a two-volume treatise entitled "Criminal Defense Tools and Techniques") for Schultz and Caroline Roberto (a member of the elite American College of Trial Lawyers) for Curley, have a point. Using material from the grand jury and from a preliminary hearing on the charges conducted in December, the two lawyers have put together an impressive argument.
As Schultz and Curley responded to nearly two hours of interrogation before the grand jury, they both testified that McQueary never used words like "anal intercourse" or "sodomy" or "rape" as he described to them what he saw in the shower.
In the 37 questions and answers that are the centerpiece of the perjury charges, Schultz testified that McQueary gave him "no indication that a crime had occurred." Curley was even more conclusive in his testimony:
Q: Are you saying that Mike McQueary did not tell you specifically that there was anal intercourse occurring between Jerry Sandusky and this child?
A: Absolutely not. He did not tell me that.
Although they agreed that McQueary did not use the vocabulary of child rape in their meeting, Schultz and Curley disagreed on the question of whether there was anything sexual in what McQueary described to them.
When asked to tell the grand jury whether McQueary described any "inappropriate sexual conduct by Sandusky," Schultz conceded that there may have been a hint of something sexual going on in the shower.
He told the grand jury that "Jerry might have grabbed the genitals of the boy," but "it was nothing more serious than that." He explained that he based his opinion on "what I observed of Jerry and the kind of horsing around that he does."
For Curley, there was nothing sexual in what McQueary told him:
Q: Did (McQueary) indicate to you that there was sexual conduct?
Q: Of any kind?
If McQueary did not expressly and specifically describe a sexual assault of a child in his meeting with Schultz and Curley, the defense lawyers suggest, then the officials could reasonably form the belief that no crime had been committed.
The lawyers will tell Judge Hoover on Thursday that their clients can be prosecuted for lies, but they cannot be prosecuted for their beliefs. If, based on what McQueary told them, they formed the belief that the shower incident was "not that serious," then they cannot be prosecuted for perjury -- they did not lie to the grand jury but instead merely offered their opinions.
For the argument to succeed, the lawyers must be able to persuade Judge Hoover that what Schultz admitted may have been somewhat sexual (grabbing genitals while wrestling in the shower) does not equate to anal sex with a boy. It's a tough case to make, but a prosecution for perjury must be based on what was said and not what might have been indicated or implied.
As they ask for a termination of the prosecutions of Schultz and Curley, the lawyers will rely on significant legal precedents that go back to the McCarthy era and on McQueary's own preliminary hearing testimony about his meeting with Schultz and Curley.
In the early 1950s, aggressive prosecutors charged several officials of the U.S. Department of State and other government agencies with perjury based on their testimony before Congressional committees that they had never been sympathizers or promoters of Communist ideology. A series of decisions in higher courts, including the U.S. Supreme Court, ruled that a witness could not be prosecuted for perjury for a sworn statement of the witness' belief.
A perjury charge must be based on what the witness described as factual (I never joined the Communist Party) and not on what a witness may have believed (I never sympathized with the Communist Party).
Farrell, arguing for Schultz, stated in a brief that the same "atmosphere of fear and prosecutorial overzealousness" that produced unfounded perjury prosecutions 50 years ago produced an "exaggerated" grand jury report designed to "tarnish (Schultz and Curley) with the scandalous allegations against Sandusky."
Farrell explains that to succeed in proving the charge now pending against Schultz, the prosecution must show that Schultz lied when he said he thought the shower episode was "not that important" and that Curley lied when he said Sandusky's conduct was not "criminal." In both cases, Farrell suggests, the statements were beliefs or conclusions and were not falsehoods that misstated facts and interfered with the grand jury's investigation.
In support of his opinion that the episode in the shower was not criminal, Schultz and Farrell will rely on the decision by police and prosecutors in 1998 that a similar incident involving Sandusky was not criminal and would not be prosecuted. The 1998 decision not to prosecute, they say, gave officials a sound basis for concluding that the 2001 incident was not criminal. Like the victims of the McCarthy persecutions, they may be right or wrong, but they are entitled to their beliefs.
In addition to the legal precedents from higher courts, Schultz and Curley will rely heavily on McQueary's admission at the preliminary hearing that he never "from day one" used words like "anal intercourse" or "sodomy" or "rape" in his meeting with the two officials.
McQueary agrees with the defense that he used the word "inappropriate" and the phrase "over the line" in his description of what he saw in the shower, language that was not dramatic enough to cause Schultz and Curley to conclude that McQueary had been an eyewitness to a horrible crime.
The prosecutors from the office of Pennsylvania Attorney General Linda Kelly will answer the defense claims with reminders that Sandusky and the boy were naked in the shower late in the evening in an empty building, that Sandusky was hugging the boy from behind, and that the word "inappropriate" and the phrase "over the line" were more than enough to warn Schultz and Curley that McQueary had observed an atrocity. In their testimony to the grand jury, the prosecutors will assert to Judge Hoover, the former officials were lying in their continuing attempt to cover up for Sandusky and to protect the football program.
The incident was so appalling, the prosecutors will argue, that McQueary fled the building, called his father and, even though he was a graduate assistant on the lowest rung of the coaching ladder, vaulted the chain of command and went straight to head coach Joe Paterno to report what happened. How could the episode have been so frightening to McQueary, the prosecutors will ask, and so benign to Schultz and Curley?
What will Judge Hoover do? Will he dismiss the charges as Schultz and Curley demand? Despite the powerful advocacy from attorneys Farrell and Roberto and their impressive array of legal precedents, the judge will not dismiss the charges. He will, however, ask the prosecutors for a more specific description of the charges against Schultz and Curley.
Instead of allowing the prosecutors to rely on Schultz's statement that the incident was "not that important" and Curley's statement that there was nothing sexual, Judge Hoover will require a more specific description of the supposed falsehoods and the facts that support the prosecutors' allegations of falsity.
The charging document in a criminal prosecution is, according to ancient jurisprudence, the "star and the compass of a criminal trial," and Judge Hoover will require the prosecutors to draft a detailed description of what they will try to prove, a kind of Google map of their evidence.
It may seem highly procedural and technical, but it will be an important turning point in the prosecution. A detailed description of the charges is a procedural requirement of due process and, as Supreme Court justice Felix Frankfurter famously said, "the history of liberty has largely been the history of the observance of procedural safeguards."
Instead of facing a jury trial on falsehoods somewhere in the 37 questions and answers in the current charges, Schultz and Curley will face a reduced number of more detailed charges. Each charge will describe what they said and what makes it false.
Once they have enjoyed this bit of due process, Schultz and Curley and their lawyers will then face the daunting task of persuading a jury in Harrisburg that they were truthful when the testified that they listened to McQueary's story and concluded that it was "not that serious" and there was nothing "criminal" about it. How, for example, will they explain to a jury that wrestling with a naked boy and "grabbing his genitals" was merely "horseplay?"
It's easy to see why they are devoting enormous efforts and resources to their attempt to obtain a dismissal before the trial.
Fighting the NCAA
A large majority of Penn State's board of trustees, university president Rodney Erickson and football coach Bill O'Brien are working hard to move on and to put the Sandusky scandal behind them.
Not so fast, say dissident trustees and former players and coaches. They want to take another look, a long and detailed look, at the sanctions that were included in the agreement Erickson made with the NCAA. Their demands are now in the form of "appeals" to the NCAA (the trustees have temporarily suspended theirs), but when the NCAA refuses to consider their appeals, they are ready to go to court.
Paul Kelly, the former executive director of the NHL Players Association, is the attorney for both groups. A highly successful federal prosecutor in Boston, Kelly led the investigation that forced Alan Eagleson, the founder of the NHLPA and a well-connected Toronto lawyer, to admit to fraud and embezzlement and prompted Eagleson's incarceration and disbarment in Canada. The 57-year-old Kelly is now a partner in Jackson Lewis, a national law firm with offices in 49 cities.
Kelly is a formidable lawyer and investigator, one of the best I have seen in 23 years of reporting on legal issues in the sports industry. He is the last guy the NCAA wants to see digging around in the procedures it followed as it extracted the "consent decree" from Erickson and Penn State. His work in the Eagleson investigation was a model of investigative technique, and he overcame powerful political forces in Canada and in the NHL that were trying to protect Eagleson.
The dissident trustees will face serious difficulties in their attempt to undo what the NCAA and Erickson have done. But the former players and coaches are in a better situation. As Kelly explains, "they have rights under the NCAA's own bylaws that are independent of anything that the university trustees or the president might do."
The next move is up to the NCAA. It is unlikely to agree to any appeal process. Kelly, the dissident trustees, the players and the coaches will then file their lawsuits, probably in a federal court in Pennsylvania.