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OpEdNews Op Eds    H2'ed 1/18/12

Three False Assertions by the Grand Jury turned the Press and Public against Joe Paterno and Penn State

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O n 5 November 2011, all hell broke loose for alumni and die-hard supporters of Pennsylvania State University and its legendary football coach, Joe Paterno. It was on that date that the Attorney General's office issued the incendiary presentment written on behalf of the Thirty-Third Statewide Investigating Grand Jury, which had been hearing testimony concerning allegations of sexual abuse of young boys by former Penn State assistant football coach, Jerry Sandusky.

In Pennsylvania, thirty citizens are selected from a pool of fifty -- which had been winnowed down from an initial pool of two-hundred -- to become the seven alternates and twenty-three members that constitute the grand jury. Grand jurors are empowered to subpoena witnesses and documents in order to determine -- under the lead of state prosecutors -- whether there is sufficient evidence of criminal activity.

"When the prosecutor has no further evidence to put before the grand jury, the jurors are asked to consider a presentment recommending that specific persons be charged with specific crimes. After considering this request in closed deliberations, the grand jury may ask to hear more evidence or may question the addition or exclusion of certain persons from the list of persons against whom charges are to be recommended. If the grand jury agrees to consider a presentment, prosecutors prepare a draft document which summarizes the evidence the grand jury has heard and sets out specific, recommended charges. The grand jury considers this document in secret proceedings. If twelve or more of the 23 permanent grand jurors agree, the presentment is "returned' and submitted to the supervising judge for his approval." ["Investigating the Investigating Grand Jury -- What It Is, What It Does," by Andrea F. McKenna, Senior Deputy Attorney General, Appeals and Legal Services, Criminal Law Division, Pennsylvania Attorney General website]

What that means is at least 12 grand jurors and a judge approved the final summary prepared by the prosecutors and released to the public on 5 November 2011. And that means we know who to blame for the incendiary errors that the summary contains.

The grand jury presentment listed 8 unidentified boys allegedly abused by Sandusky and it contained extremely graphic language, designed not only to capture accurately the sordid nature of some of the assaults, but also to shock the reading and viewing public into outrage that demanded justice. According to the grand jury report some of Sandusky's despicable assaults occurred while he was still serving on Joe Paterno's football coaching staff and some of them occurred after he retired in 1999. There's no denying there were enough disturbing allegations in the report to merit the charges brought against Sandusky. But these allegations also drew the public's attention to his former boss, legendary Joe Paterno and Penn State's football program.

Many Americans took the grand jury presentment (or thoughtless reporting about it) as gospel and, predictably, expressed outrage that was off the charts. A distant relative asked me: "What do you think about all those pedophiles running around Penn State?" When, I corrected him by saying, "There's just one alleged pedophile, as far as I know," he responded by saying, "When there's one, there are many more." Can a person be any dumber than that?

Often, so-called news reporters were just as idiotic. Consider the news article that gave the impression that Penn State had failed to report the assaults of all eight victims. Or the report that one of the assaults took place at Paterno's house.

But what really transformed so many lazy and mediocre reporters into jackals and so many lazy and ignorant citizens into jackasses -- all fulminating in righteous indignation against Joe Paterno and Penn State -- were three inflammatory, but false assertions that found their way into that part of the grand jury presentment that addressed "Victim 2" (who has yet to be located or identified by prosecutors, let alone testify.)

The First False Assertion: On pages six and seven of the grand jury presentment one reads the second-hand summary of testimony given to the grand jury by the Penn State "graduate assistant," subsequently identified to be Mike McQueary. According to this second-hand account, McQueary "saw a naked boy, Victim 2, whose age he estimated to be ten years old, with his hands up against the wall, being subjected to anal intercourse by a naked Sandusky."

That assertion is false! Why? First, because, in December 2010, nearly a year before the release of the grand jury presentment, McQueary had given investigators a hand-written statement in which he asserted: "I did not see insertion. I am certain that sexual acts/the young boy being sodomized was occurring." [Sara Ganim, Harrisburg Patriot-News 11 December 2011].

His inarticulate language aside, if McQueary's hand-written statement (denying that he saw insertion) is accurate, then the grand jury report must be wrong, because anal intercourse is defined as "the sex act in which the penis is inserted into the anus of a sexual partner." If McQueary didn't see insertion, then he didn't actually see anal intercourse.

Based upon all of his published testimony, McQueary seems to have believed that the intercourse already had occurred, due to: (1) some "slapping sounds" he remembered hearing only in the hallway leading to the locker room and (2) the vision he had of a naked Sandusky standing closely behind a young boy, after McQueary entered the locker room and looked into a mirror seconds later. But that belief is much more tentative and speculative than the starkly certain eye-witness account of "anal intercourse" found in the grand jury presentment. Thus, somebody appears to have tampered with McQueary's testimony.

Moreover, if you examine Mike McQueary's subsequent testimony, which was given on 16 December 2011 at the preliminary hearing for Penn State's former Athletic Director, Tim Curley, and its former Senior Vice President for Finance and Business, Gary Schultz, you'll see that McQueary is steadfast in his assertion that he never saw "insertion." Twice, McQueary asserted the essence of this sworn testimony: "I did not see insertion nor was there any verbiage or protest, screaming or yelling, so I can't sit here and say that I know 100 percent sure that there was intercourse, but that's what I said to myself and that's what I believed was happening." [Transcript of Preliminary Hearing, pp.13-14, p. 72] When he was asked if he saw "the look of pain on the boy's face," McQueary said, "no."[p. 97]

Later, under cross-examination, McQueary was even more emphatic: "I have never used the word anal or rape in this -- since day one." [Transcript, pp. 71-72] Thus, the reader must doubt the grand jury presentment every time it summarizes McQueary's testimony by asserting he saw something "anal."

Use your common sense: Should we believe the more prosaic first-hand testimony that McQueary provided both in his hand-written statement and in his subsequent testimony under oath? Or should we believe the vivid and inflammatory allegation of "anal intercourse" found in the second-hand summary of his testimony?

The Second False Assertion: After falsely asserting that McQueary "saw a naked boy"being subjected to anal intercourse by a naked Sandusky," the author who summarized the grand jury presentment made a very misleading assertion when he wrote that: McQueary "went to Paterno's home, where he reported what he had seen." [Grand Jury Report, p. 7]

Obviously, by linking the false assertion that McQueary "saw a naked boy"being subjected to anal intercourse by a naked Sandusky" to the assertion that McQueary "reported what he had seen" to Paterno, the author who summarized McQueary's testimony wants American readers to believe that the grand jurors believed that McQueary went to Paterno and told him that he witnessed Sandusky engaged in anal intercourse with a young boy. Perhaps, the jurors did.

But, as we now know -- given his hand- written statement in December 2010 and his subsequent actual testimony under oath on 16 December 2011 -- McQueary has testified that he never witnessed insertion and never used the word anal.

In addition, McQueary testified under oath that he never used the term "sodomy" or "anal intercourse" when he notified Paterno about what he saw in the shower on 1 March 2002. [p. Preliminary Hearing Transcript, p. 25] (In fact, McQueary testified under oath that he could not recall using the words "sexual assault," when talking to Paterno, or even using the word "crime" to describe Sandusky's behavior) Actually, McQueary's preliminary hearing testimony substantiates Paterno's earlier assertion (in a news release) that McQueary "at no time related to me the very specific actions contained in the grand jury report." [Star-Ledger Wire Services, Nov. 8, 2011]

I must admit, when I first heard Paterno dispute what I took to be McQueary's grand jury testimony, I thought, "McQueary must be lying!" Thus, like many other thoughtless Americans at the time, it didn't occur to me that the author who summarized McQueary's grand jury testimony in the presentment might have crafted a misleading assertion.

It's also worth mentioning at this point that McQueary did testify he was sure he used the term "fondling" when talking to Paterno on 2 March 2002. Thus, that testimony clearly substantiates Paterno's grand jury testimony, where he asserted that he told Athletic Director Tim Curley that McQueary "had seen Jerry Sandusky in the Lasch Building showers fondling or doing something of a sexual nature to a young boy." [Grand Jury Report, p. 7] It also answers the question posed by many disparagers of Paterno: "How was the sordid anal intercourse witnessed by McQueary passed up Penn State's chain of command by Paterno as mere "fondling?" Now you know. Anal intercourse was never mentioned, but Sandusky's rough positioning and fondling were!

Thus, the evidence strongly suggests that the grand jury presentment's second-hand summary of McQueary's testimony -- which strongly and directly implied that McQueary told Paterno he witnessed anal intercourse -- is false.

Again, simply ask yourself: Should we believe the prosaic first-hand, testimony by both McQueary and Paterno about "fondling," and their denials about any discussion of anal intercourse? Or should we believe the second-hand account of McQueary's testimony that misleads the reader into inferring that McQueary told Paterno about anal intercourse?

After you've reached the correct conclusion, think about all the misplaced outrage and abuse directed at Paterno by media jackals and the many jackasses they incited, who thoughtlessly swallowed that misleading inference and indignantly asked: "How could Paterno have done so little after being told about the rape of a child?" Message to planet earth: Paterno never was told about a rape!

The Third False Assertion: On page seven of the grand jury presentment, the second-hand summary of McQueary's testimony states: McQueary "reported to Curley and Schultz that he had witnessed what he believed to be Sandusky having anal sex with a boy in the Lasch Building Showers." [p. 7] This assertion is closer to the truth, but also appears to be false, if only because McQueary subsequently testified on 16 December 2011 that he "never used the word anal or rape in this -- since day one."

Moreover, McQueary specifically testified that he did not use the words "sodomy" or "anal intercourse" when he reported what he saw to Curley and Schultz some ten days after talking to Paterno. [Transcript, p. 34.]

Nevertheless, when reading the preliminary hearing transcript, which contained the full verbatim testimony provided by Curley and Schultz to the grand jury on January 12, 2011, I was struck by the persistence with which the prosecutors questioned both Curley and Schultz about whether McQueary ever mentioned "anal sex" by Sandusky to them. Why would they pursue the "anal intercourse" or "anal sex" line of questioning if McQueary had not given these attorneys reason to believe that is what he saw?

Why? Because, McQueary never wavered in his impression that Sandusky had engaged in anal sex, even if he never used the word anal and never witnessed the act of insertion.

Nevertheless, McQueary's testimony at the preliminary hearing buttresses the assertion attributed to Curley in the grand jury report: "When asked if the graduate assistant had reported "anal sex between Jerry Sandusky and this child,' Curley testified, "Absolutely not.'" [p. 8] Thus, both McQueary and Curley have testified under oath that they never discussed "anal sex," notwithstanding the second-hand summary in the grand jury presentment that has McQueary testifying precisely to "anal sex."

Similarly, since McQueary and Curley agree that they never discussed anal sex during their conversation, Gary Schultz -- who was at that same meeting -- could not have heard any discussion of "anal sex." But that did not stop one of the prosecutors from asking Schultz: "Would you agree with me that if it had been sodomy, that is, anal sex, that would clearly be inappropriate sexual conduct." Schultz answered, "No doubt," but he subsequently asserted that he didn't recall McQueary "telling us what he observed specifically." [Transcript, p. 226] Thus, Schultz had "no indication that a crime occurred."[p. 229]

Again, ask yourself: Should I believe the first-hand testimony of McQueary, Paterno, Curley and Schultz? Or should I believe the second-hand summary of McQueary's testimony found in the grand jury presentment?

Thus, for a third time, it appears that the grand jury presentment has falsely summarized McQueary's testimony. Should we be surprised?

No. Not if you consider another example where the summarization of McQueary's testimony in the grand jury presentment is contradicted by his subsequent testimony at the preliminary hearing.

Consider this: The grand jury report asserts that: As McQueary "entered the locker room doors, he was surprised to find the lights and showers on. He then heard rhythmic slapping sounds." [p. 6]

Yet, when under cross-examination by Curley's lawyer, McQueary testified that he passed through two sets of doors, separated by a hallway, before entering the locker room that had the showers. He also testified to hearing the slapping sounds upon entering the first set of doors. Thus, he was in the hallway, not the locker room when he heard the slapping sounds. In fact, when Curley's lawyer asked him if he heard the slapping sounds after he entered the second set of doors, McQueary asserted that he couldn't recall. [pp. 53-54 of Transcript]

Thus, if we are inclined to believe McQueary's first hand testimony under oath to second-hand summaries of that testimony, then the grand jury presentment appears to have gotten the facts wrong again!

Were these false summaries of McQueary's testimony in the grand jury presentment accidental, or were they part and parcel of a "prosecutorial document designed to get convictions and to sway public opinion?" [Bill Kline, "It was a witch hunt at Penn State," The Morning Call, November 18, 2011] The very inflammatory use of "anal intercourse," when McQueary has made it a point to deny that he ever used the word "anal," convinces me that the insertion of inflammatory false statements into the grand jury presentment was intentional.

Now, I ask you: "Who doubts that it was the grand jury presentment's erroneous assertion the Mike McQueary "saw a naked boy"being subjected to anal intercourse by a naked Sandusky" that not only sparked the outrage of countless Americans against Sandusky, but also against Penn State University and Joe Paterno, due to their supposed failure to act appropriately after McQueary told them about them rape? Presumably, you are aware of the countless news reports by jackals in the media who excoriated Paterno and other officials at Penn State for allowing an alleged rapist go free.

If not, here are a few examples: In its 4 December 2011 editorial, the board of the Philadelphia Inquirer wrote: "Instead of alerting authorities, university officials and staff participated in what has all the markings of a cover-up. Their dismissal of the reported rape of a boy in a locker-room shower as mere "horsing around' was an outrageous example of a mind-set that the university must now eradicate""

Or consider the wicked bile spewed by Charles P. Pierce at on Nov. 14, 2011: "The crimes at Penn State are about the raping of children. That is all they are about"It no longer matters if there continues to be a football program at Penn State. It no longer even matters if there continues to be a university there at all."

Finally, consider the 11 November 2011 opinion of Howard Bryant at ESPN. "The university, responding to information provided by a graduate student in 2002 that he had witnessed Sandusky performing anal sex in the shower on a boy about 10 years old, did nothing."

(At least half a dozen writers at ESPN -- Ivan Maisle, Roderick MacLeish, Tim Keown, Gene Wojchiechowski, Jemele Hill and Bryant -- wrote asinine opinion pieces filled with misplaced outrage and indignation based upon the false assertions in the grand jury presentment. I wish I could say they gave sports reporters a bad name, but they're actually quite representative of the poorly educated slugs who stink up this so-called "profession." If you're looking for the bottom of the barrel, however, look for Dan Bernstein)

Such comments are very representative of the intemperate sludge spewed by jackals in the news media and lapped up by countless mindless jackasses in the court of public opinion.

The breadth of the indignation was widespread. According to a poll by the Pew Research Center's Project for Excellence in Journalism (what irony), during the period of November 17-20, "the American public deemed the Penn State scandal the most compelling news story by a wide margin."

And the depth of the indignation was accurately captured by a member of the righteously indignant in an email he sent to me about a month ago: "Millions of Americans across the nation have been expressing passionately, without restraint, their judgment of this affair because of and motivated by one dominant issue. That issue being the tragic image of a defenseless little boy being overwhelmed and sexually exploited by a real live monster! A little boy image abstracted horrifically in the minds of a caring society has captured the emotions, defined the unlimited outrage of folks emotional and outraged! It is the victim who is the single most important issue -- the single most important "event." Walter, those same millions are screaming out daily the questions you so eloquently offer: "...What and when did Paterno know!"   But again, understand the masses outrage is motivated, prompted exclusively by "one" single event having to do with one single little boy."

The breadth and depth of that outrage was sufficient to intimidate the cowards populating Penn State's Board of Trustees to unceremoniously fire Joe Paterno, without even hearing his side of the story.

Consequently, whoever summarized McQueary's testimony to falsely assert that he actually saw "anal intercourse" by Sandusky and reported what he actually saw to Paterno, Curley and Schultz needs to be identified, asked to explain himself or themselves, and, perhaps, pay a big price for the largely over-the-top outrage it sparked against Paterno and Penn State.

Responsible Penn Staters demand to know how allegations of possible sexual misconduct by Jerry Sandusky on 1 March 2002 could be responsibly reported up Penn State's chain of command by Mike McQueary and Joe Paterno, only to die before reaching the desk of President Graham Spanier--the official legally responsible for reporting possible child abuse to state authorities. Who dropped the ball? Why? And why did it remain of the ground for nearly nine years?

But our concern for getting to the bottom of that problem shouldn't prevent us from insisting that an investigation be undertaken that would account for the false assertions in the grand jury presentment that proved so harmful to our football legend and alma mater.

Let THAT investigation begin!

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Walter C. Uhler is an independent scholar and freelance writer whose work has been published in numerous publications, including The Nation, the Bulletin of the Atomic Scientists, the Journal of Military History, the Moscow Times and the San (more...)
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