According to the grand jury presentment, the senior janitor, Jay Witherite, received the report of Sandusky's molestation of Victim 8, witnessed and reported by Jim Calhoun. Witherite testified that he told Calhoun who to report the incident to and that he tried to calm Jim down because he was afraid Calhoun would have a heart attack.
In the Commonwealth's opening, prosecutor McGettigan stated that the jury would hear from "a few" of Calhoun's coworkers about the abuse that took place in 2000. But only one coworker - Petrosky - took the stand.
On page 65 of the Freeh Report, it states: “According to the testimony of the witnesses in Gerald A. Sandusky’s (“Sandusky”) trial in Centre County in June 2012, in the Fall of 2000, a temporary University janitor….observed a man, later identified to him as Sandusky, in the Assistant Coaches locker room showers of the Lasch Building with a young boy….Sandusky had the boy pinned against the wall and was performing oral sex on him. The janitor immediately told one of his fellow janitors…what he had witnessed, stating that he had fought in the [Korean] War…seen people with their guts blowed out, arms dismembered….I just witnessed something I’ll never forget.”
But Freeh got that wrong too. Only one of the witnesses - Petrosky - testified and the incident was changed to the Staff Locker Room.
So, what happened to the other witness, Jay Witherite?
The answer likely lies in the sidebar discussion that prosecutors McGettigan and Fina, Sandusky defense attorney Karl Rominger, and Judge Cleland held before Petrosky took the stand.
The SidebarMcGettigan started the discussion by stating that the trial testimony of Petroksy and Witherite would differ from their testimony at the grand jury based on more recent discussions with the witnesses. McGetingan went on to explain that the incident observed by Calhoun (the eyewitness) took place in the staff locker room, that Calhoun was in the locker room the entire time, and that he was emotionally shaken by the incident and his testimony should be considered as an excited utterance. McGettigan characterized the new testimony as nothing "dramatically different."
Judge Cleland responded to the effect that the prosecution would not make a false representation of the testimony and would allow it.
The record shows that McGettigan was changing the crime scene from the Assistant Coaches Locker Room to the Staff Locker Room, that the eyewitness (Calhoun) was inside the locker room the entire time, watching Sandusky molest the child from just a few feet away, and that Calhoun remained inside until Sandusky and the child exited and Petrosky entered. In the grand jury version, Petrosky saw just the legs in shower because of an obstruction, waited for Sandusky and the child to exit, than began cleaning the shower when he was approached by Calhoun, who came into the locker room from another (undisclosed) location.
In response, Rominger stated that the view of Sandusky and the child was blocked by a curtain -- consistent with the grand jury version testified to by Petrosky.
Fina then interjected that the incident occurred in the same locker room (the Staff Locker Room) that McQueary had testified about and the pictures of it revealed nothing blocking the view into the shower.
The defense was unprepared for the change of venue and didn't object to the new information.
TestimonyJudge Cleland allowed the testimony and Petrosky testified to the new version of events. The testimony of Petrosky was highly questionable because he stated that he could only see the bottoms of the legs because he was looking down. I suggest trying this at home because it is next to impossible to not to see above someone's knees while looking at their feet.
The second impossibility in Petrosky's testimony was that he had read about McQueary's incident in the March 2011, Centre Daily Times. As readers of this blog know, the McQueary incident was not public knowledge until November of 2011.
Finally, it is highly unusual for an able bodied man (Calhoun) witnessing a molestation of a child not to intervene. But that's exactly what Petrosky stated with this testimony and the defense never raised the issue in cross-examination.
Petrosky was the last witness called that day (June 13, 2012), however when testimony resumed the next day, Witherite was not called.
You'd have to ask Witherite and/or the prosecutors.
I won't speculate as to why, but I will speculate that Witherite was probably more than happy not to have to take the stand and testify to the new information.
This incident was not the only one that was changed by McGettigan during the trial. The dates of the Victim 5 incident were changed by three years an the dates of other crimes were manipulated in a likely attempt to bolster child endangerment charges against Curley, Schultz, and Spanier.
There were numerous problems in how the prosecutors put on the Sandusky case. I will cover many of them when I release Report 3 on the Sandusky investigation.
Next up: Tony "TV Guide" Sassano