McQueary Quandary: Did Penn State Misfire on Joe Paterno?

by Kurt Schulzke

Did Penn State fire Joe Paterno too quickly?  Aspects of the Jerry Sandusky child sex story most damaging to Paterno are beginning to unravel.  One inflammatory (and likely inaccurate) popular belief:  Paterno failed to communicate to police or Penn State superiors the full, lurid details supposedly told him by whistleblower Mike McQueary the “morning after” McQueary allegedly stumbled upon a rape-in-progress.

Recent case disclosures — including a McQueary e-mail contradicting the indictment’s version of events and subsequent local police contradictions of McQueary’s e-mail — call into question not only McQueary’s story but also the entire indictment.  All of which may mean that Penn State wrongly fired Paterno, a disturbing possibility belatedly getting some media attention.

Indictments — by which  grand juries say merely “the prosecutor has enough evidence to put on a trial” — are built from the prosecutor’s  preliminary one-sided, untested version of events.  Witnesses who testify to a grand jury are not cross-examined by defense counsel.  As a result, indictments can be (and have been) horribly inaccurate.  This is vividly illustrated by the notorious Duke University lacrosse case in which North Carolina prosecutor Mike Nifong was jailed for falsely accusing Duke lacrosse team members of rape.

The Penn State grand jury indictment says that on March 1, 2002, at around 9:30 p.m., McQueary witnessed the shower rape, returned to his office, called his father, and then immediately left the building (Indictment, p. 6), calling and meeting Paterno the next morning.  By omission, the indictment implies that McQueary neither intervened to stop the rape nor called police:

Note that the indictment does not say what details McQueary shared with Paterno about “what he had seen.”  Despite this lack of clarity, the public have assumed that McQueary told Paterno everything or at least something like “I saw Sandusky raping a 10-year old boy in the shower.”  Based solely on publicly available data, it is possible, even likely, that McQueary did not do so.

In the next paragraph (also p. 6), the indictment says that on Sunday, March 3, Paterno called Penn State’s Athletic Director, Tim Curley, and told Curley that McQueary had reported Sandusky “fondling or doing something of a sexual nature to a young boy.”  On the basis of this  seemingly contradictory indictment language, the media (and, therefore, the public and Penn State’s Board of Trustees) quickly turned on Paterno for (supposedly) deliberately down-playing the event in reporting it up the line.  But Paterno may indeed have reported everything McQueary told him.

Oddly, just one paragraph later, the indictment describes much more specifically what the grand jury says McQueary told them (almost nine years after the alleged event) that McQueary told Curley and Penn State SVP Finance Gary Schultz about ten days after McQueary’s meeting with Paterno:

The difference in detail between the two indictment paragraphs is striking.  In the first, McQueary told Paterno merely “what he had seen.”  But in his meeting with Curley and Schultz, McQueary “had witnessed what he believed to be Sandusky having anal sex with a boy in the Lasch Building showers.” The quantum leap in specificity from one meeting to the next is unlikely to be a mere drafting oversight.  McQueary very likely told the grand jury that he first gave Paterno a dumbed-down version and, later, provided the details to Curley and Schultz.  Why he might have done so (we don’t know whether he actually did) is unclear.  Perhaps he didn’t want to burden his beloved 74-year-old coach with painful, graphic details that Paterno did not need to hear.  At this point in time, it’s impossible to say.

In any event, dismayed at the public trashing of his own reputation for allegedly failing to stop the rape on the spot and to call police immediately, McQueary emailed a friend on November 8, attempting to set the record straight as reported by the Chicago Sun-Times:

McQueary … wrote: “I did stop it, not physically … but made sure it was stopped when I left that locker room … I did have discussions with police and with the official at the university in charge of police …. no one can imagine my thoughts or wants to be in my shoes for those 30-45 seconds … trust me.”

Added McQueary: “Do with this what you want … but I am getting hammered for handling this the right way … or what I thought at the time was right … I had to make tough impacting quick decisions.”

In response, State College, PA and Penn State University police now say they have no record of receiving any such report from McQueary.  McQueary’s email calls into question the accuracy and completeness of the grand jury indictment and, perhaps, his own testimony before the grand jury.  The Police response to the McQueary email raises additional doubts about the reliability of McQueary’s memory of the events which occurred nearly ten years ago and nine years before he finally spoke to the grand jury, in December 2010.  But the conflicting accounts may also signal problems with police records or integrity.

We just don’t know what McQueary saw, what he told Paterno he saw, what Paterno or McQueary told Curley and Schultz or what McQueary told (or didn’t tell) the police.  Ultimately, as I suggested in A Modest Defense of Joe Paterno, no one knows enough yet about this case to begin tearing apart the heroic reputation of legendary Penn State Coach Joe Paterno.  Even the Pennsylvania Attorney General’s office has questioned why Paterno (a cooperating witness) was fired when Curley (indicted for perjury) was not.

What can prospective whistleblowers learn from Mike McQueary? First, if you have a story to tell, tell it as soon as possible after it happens.  Passage of time does terrible things to recollection and believability.  Second, before you speak, organize your thoughts to be sure that you tell the complete story from the start and then stick with your story.  Partial truths can be worse than no truth at all.

Memo to all: In the search for truth, grand jury indictments should be taken for what they are worth as a source of fact: nothing.  Until the allegations made in an indictment are tested through the rules of evidence and adversarial cross-examination in a court of law, they should not be trusted for any purpose beyond the call for a trial.

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