Sunday, November 20

Outsider's View of PSU and the National Narrative

First ever post on the situation in Nov 2011 - Barry Bozeman

I am a 65 year old Tennessee graduate and fan who's only ties to Pennsylvania was a year spent in Sayer, Pa in 2002. My father was a Judge and political figure in Tennessee and I attended law school there for a time. Dad was a past president of the UT Alumni Association and I know something about the love of a university and it's football program. I know first hand how those institutions can sometimes protect themselves to the detriment of others but I do not believe that is what was happening in State College in the wake of Jerry Sandusky
Perhaps some people can dismiss those who object to what is being touted in the national press from PSU alumni and students as misplaced loyalty but they can't dismiss it from an outsider on those terms. I have no ties or particular love for PSU or JoePa. But I am appalled at the knee jerk reactions of much of the media and political figures who have created a rush to judgment of Mike McQueary and Joe Paterno and the good people at PSU.
I will tell you why after the jump.

A Grand Jury Report is a summary of allegations designed to justify an indictment. 

It is in not meant to be  a fair or complete description of testimony or facts. It contains no full quotes, no Q & A, no exculpatory evidence, no cross-examination, and only the most damning parts of testimony presented in a manner that is most damaging to the target of the investigation. The testimony that makes up the basis for this document has not been subject to review by the defense. Yet so many media people use the allegations in this document as if they were unassailable FACT and the whole story without any regard for the damage it might do to those who testified as "credible witnesses".

The Grand Jury Report makes credible witness Mike McQueary out to be some kind of coward as if he ran from an old man brutally sodomizing a defenseless 10 year old boy who was pleading for help.
But is that what happened? I doubt it.

Suppose that Mike McQueary's testimony went something like this:

"I entered the locker room on March 1 2002 hearing noise like a slapping sound from the showers. I thought it must be another staff member having sex in the shower so I hurriedly put some shoes in my locker. On my way out much to my shock I saw a child and my former coach, a man both I and the football community held in the highest esteem. It was steamy and there was water running and "I can't be certain what I saw because I was in a state of shocked disbelief.  I could not wrap my mind around the idea that a man I though was like a saint was actually doing something I thought from the sounds was sexual. The two of them turned off the showers and grabbed their towels and I went into a nearby office to call my father for advice. The boy seemed to be on friendly terms with Jerry and happy to be there. I could not get that first impression out of my head but the shock of it made it difficult to be certain and I couldn't think straight. I did not know if I should try to stop them from leaving and did not know if I had the right to do that. It would be my suspicion vs the word of this Penn State icon and former heir to Joe Paterno. "From the time I first saw them to the time I went to make the call it was only 45 seconds. It all happened so fast but I was mortified to see a naked grown man I respected in such close contact with a young boy where it seemed to me something of a sexual nature was happening. I was stunned and shocked so I spoke to my Dad for several minutes to calm down and get my head straight and then went to his house to discuss with him what if anything I should do. On his advice we went to see Joe Paterno early the next morning and I told him this same story. I then spoke to the AD and VP in charge of campus police and told them what I told JoePa and what I am telling you now." I heard these sounds I thought were something sexual and the only people in the shower were Jerry and the boy." 
The prosecutor would then summarize this testimony into - Graduate assistant witnessed a 10 year old victim suffering brutal anal intercourse and ran to call his father. JoePa seems to summarize what he was told as "some kind of inappropriate horsing around of a possibly sexual nature". The AD and VP summarize it as inappropriate horseplay and they inform Second Mile and tell JS that he must not bring any kids to the PSU locker rooms again. Remember they don't know who the victim or kid in the shower was.

Most people will describe a boy in an age range like 10 to 14 or 8 to 12 years old because it's tough to guess the exact age of children. The DA will use the youngest age mentioned because the younger the boy the worse the perception. It's like using "anal intercourse" when given a choice of "something of a sexual nature, fondling, or sodomy"

I suppose the VP or AD should and could have gone to Sandusky and asked him to take them to the boy and then asked him what happened (and maybe they did) or they should have had their campus police do it. If the boy seemed scared or if he begged for assistance McQueary's response would be one thing but if he behaved as if nothing were wrong it would be something else. If the activity stopped immediately and they were dressing and leaving does McQueary have the right to hold them there without the 'victim' asking for help? Would the police hold them if the boy said it was all a mistake? Did McQueary know for certain the boy wasn't a foster child of Sandusky or a grandchild? We have not seen a diagram or picture of the locker room or McQueary's locker and the view and distance to the showers?

Do we know exactly what happened? Can we can identify with a 28 year old graduate assistant who is shocked and dumbfounded by seeing his longtime family friend, coach and mentor in the showers with a boy and the possible confusion over what exactly what he was witnessing? Do you know exactly what you saw in fleeting seconds from some indeterminate distance through steam and water if one of the parties was a person you respected and even loved? Do you know how you would react?  

The NATIONAL NARRATIVE and rush to judgment based on a summary of allegations. 

So many professional reporters and talking heads like Mark May and Greg Doyle have rushed to judgement of Paterno and McQueary based only on this one sided and incomplete Grand Jury Report. The stupidity and callousness of the DA who made that report public without explaining it's purpose is apparent. He has caused the PSU Board Of Trustees to rush to judgment by firing the man who quite likely did the right thing and who has given a lifetime of service to Penn State University. His report has ruined the life of a reportedly fine young man who grew up in State College and loved his university by making it appear that he was a coward who ran away while a 10 year old boy was pleading for help as he was being brutalized. So many people outside of PSU have formed an indelible opinion based on this Grand Jury Report that what has been done can never be undone. The DA however is making quite a name for himself that could advance his political career.

I could be wrong - but then again I could be right and none of us outside of those that have read the complete testimony of Mike McQueary know exactly what he said and even if we had he was not cross examined by a defense attorney who would likely get to the root of any confusion, doubts, and state of mind. Mike McQueary is not on trial in the justice system. He is on trial in the court of public opinion and no one speaks for him. He will not have a day in court to explain his version of events for a very long time while the career he worked so hard to build lies in ruins because he chose to speak up. If he had only kept his mouth shut none of what is happening to him now would be happening. There would not be a Fire Mike McQueary dot com website vilifying him and claiming he will never work again in the profession he loves and excels at because he was in the wrong place at the wrong time.

The moral is don't rush to judge what you do not fully understand. You cannot put yourself in Mike McQueary's mind given his personal history with JS, State College, and PSU, and there is no way we know the exact nature of what he and JoePa discussed or how he described the events to the AD or the VP. There is so much the Grand Jury Report does not tell us and what it does is by design totally biased.

Watch out for the Governor who was leading this investigation for 1 year 3 years ago. He is trying to cover his ass as is the prosecutor who will use this case to further his political career if he can. The DA summarized the McQueary testimony to suggest the gist of what the prosecution wants to try to prove. We don't know exactly what was said and until we do we cannot judge Joe Paterno or Mike McQueary. That makes the firing of JoePa a complete travesty of justice for political gain and the reaction of the media and the public a judgment based on woefully incomplete information.

And this is from and outsider who has no ties or loyalty to Joe, Mike, PSU or the State of Pa.

Legal Definitions - Presentment or Report and Indictment
A Grand Jury Report or Presentment is a Summary of Allegations designed to justify an INDICTMENT 
Legal Definition – PRESENTMENT, crim. law, practice. The written notice taken by a grand jury of any offence, from their own knowledge or observation, without any bill of indictment laid before them at the suit of the government; 4 Bl. Com. 301; upon such presentment, when ’proper, the officer employed to prosecute, afterwards frames a bill of indictment, which is then sent to the grand jury, and they find it to be a true bill. In an extended sense presentments include not only what is properly so called, but also inquisitions of office, and indictments found by a grand jury.

Legal Definition -indictment n. a charge of a felony (serious crime) voted by a grand jury based upon a proposed charge, witnesses’ testimony and other evidence presented by the public prosecutor (District Attorney). To bring an indictment the grand jury will not find guilt, but only the probability that a crime was committed, that the accused person did it, and that he/she should be tried. District Attorneys only introduce key facts sufficient to show the probability, both to save time and to avoid revealing all the evidence. The Fifth Amendment to the U. S. Constitution provides that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment of a Grand Jury…" However, while grand juries are common in charging Federal crimes, many states use grand juries sparingly, and use the criminal complaint, followed by a "preliminary hearing" held by a lower court judge or other magistrate, who will determine whether or not the prosecutor has presented sufficient evidence that the accused has committed a felony. If the judge finds there is enough evidence, he/she will order the case sent to the appropriate court for trial

When reading these definitions it is evident that the DA presents only key parts of testimony sufficient to get a case to trial. This is meant to be the biased unchallenged most damning statements by witnesses without revealing anything like the complete testimony. And despite what any witness might provide under questioning by investigators or prosecutors, the testimony has not been subjected to cross-examination to determine things like 1) degree of certainty 2) circumstances of state of mind, distance, obscured vision by steam or water, position of the parties involved, or potential misconceptions.

Exact Text of the Grand Jury Report regarding Mike McQueary
This is called Finding of Fact and is under the Victim 2 section of the Report. 
We know the investigation did not turn up the name of this victim and there is no corroborated testimony. It is all from Mike McQueary about the incident and there is contradictory testimony about what was said to Paterno, the AD, and the VP.
On March 1, 2002, a Penn State graduate assistant who was then 28 years old entered the locker room at the Lasch Football Building on the University Park Campus on a Friday night before the beginning of Spring Break. The graduate assistant , who was familiar with Sandusky, was going to put some newly purchased sneakers in his locker and get some recording tape to watch. It was about 9:30pm. As the graduate assistant entered the locker room doors, he was surprised to find the lights and showers on. He then heard rhythmic slapping sounds. He believed the sounds to be those of sexual activity. As the graduate assistant put the sneakers in his locker, he looked into the showers. He 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. The graduate assistant was shocked but noticed both victim 2 and Sandusky saw him. He left immediately, distraught. 
QUESTIONS on above statement: 

  • 1) How far from McQueary’s locker to the showers? 
  • 2) How could McQueary see penetration from a distance? Was there steam and water in the way?
  • 3) Was there 20 seconds of this view? 15? Did JS and the boy see McQueary immediately and turn toward him
  • 4) Did JS say anything to him?
  • 5) How does a 6'4 grown man fit with a 10 year old boy who's head comes up to his chest while standing up in a shower? 
The graduate assistant went to his office and called his father, reporting to him what he had seen. His father told him to leave the building anc come to his home. The GA and his father decided the GA had to promptly report what he had seen to Coach Joe Paterno, head football coach of Penn State. The next morning, a Saturday, the GA telephoned Paterno and went to Paterno’s home where he reported what he had seen.

Joseph V. Paterno testified to receiving the GA’s report at his home on a Saturday morning. Paterno testified that the GA was very upset. Paterno called Tim Curley the PSU AD and Paterno’s immediate superior to his home the very next day, a Sunday, and reported to him that the GA had seen Jerry Sandusky in the Lasch Building showers fondling or doing something of a sexual nature to a young boy.

  • QUESTIONS: So did he say fondling or something of a sexual nature or Anal intercourse or Sodomy? 
  • Did he say "something that might have been sexual like anal intercourse"  or I am certain it was anal intercourse?
  • How certain was he of what he saw exactly? And exactly what was his quoted testimony? Did he alter his perception with time? 

Approximately one and a half weeks later, the GA was called to a meeting with PSU AD Curley and Sr VP for Finance and Business Gary Schultz. The GA 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. Curley and Schultz assured the GA that they would look into it and determine what further action they would take. Paterno was not present for that meeting.

QUESTIONS: So he told Paterno something of a sexual nature or fondling and he told the AD and VP it was anal intercourse? Somehow I doubt that. 
The defense will tear his testimony apart if he changed his account and I doubt he did. I think this is all the prosecutors summary aggrandized to get an indictment and sensationalize the event for the publicity. 

Notice these things about the Grand Jury Report
  • NO quotes
  • NO Q & A
  • NO ‘believes’ ‘maybes’ ‘could have been’s’ or ‘uncertainties’ 
  • Not a hint of confusion or lack of specifics as if McQueary was focused enough to completely understand and view everything.

Without direct quotes we can’t know the language used and that makes it obvious that the DA or prosecutor summarized or interpreted the gist of the testimony

The summary suggests that Mike McQueary told Paterno, the investigators, the AD and the VP different versions of what he might have seen. That is how we know his statements in the later emails are likely to be more accurate than this Grand Jury report concerning "I made sure it stopped" and "I reported it to the police". The Grand Jury Report never says that McQueary or Paterno DID NOT follow up with the AD or VP on the status of the investigation. It is quite possible they were told by Curley of the VP Schultz that Sandusky put them in touch with the boy and he said it was all harmless horseplay. It is even possible that the boy was 16 and he consented which is legal in PA.

This is a terrible report for the prosecution if it suggests to a jury that MM told different versions of what he saw – and it appears from the summary that he might have. That is a good reason for the perjury charges against Curley and Schultz. This also puts the DA in the headlines for a year or more as the guy going after a cover up. That's a huge boon to a political career. Just ask the former DA and current Governor.

Everyone should read LET’S ALL FEEL SUPERIOR piece in the NYT and take the time to view this interview with JON RITCHIE on ESPN along with the GROWING UP PENN STATE piece.  These offer valuable insight from good sources on the nature of the current situation and the rush to judgment.

If you have previously made up your mind about the Sandusky Scandal you now have a chance to reevaluate your position in the light of additional information and a clear definition of the Grand Jury Report and it's purpose. If you wish to continue to believe Mike McQueary is the weak cowardly enabler of more abuse that's your right too. I just want to wait until the testimony is revealed in full before adding my voice to the chorus of voices condemning a graduate assistant on the basis of this Grand Jury Report.
A real irony here is that this part of the indictment will likely be the least useful at trial without an identified victim. And if the victim testifies it was all harmless horse play these particular counts of the indictment will not stand. That will make the entire involvement of the Penn State coaches, AD and VP a travesty of justice of incredible magnitude.

 Excellent IT WAS A WITCH HUNT AT PENN STATE piece that closely echos my sentiments about the situation.

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