The case of the PSU 3 has come down to the charges of Endangering the Welfare of a Child (EWOC) and related conspiracy.
If Judge Boccabella instructs the jury in the same manner as Judge Cleland, the outcome should bode well for the defendants -- if the jurors follow the letter of the law.
In the Sandusky case, Cleland instructed the jurors on the four elements that had to be met for EWOC. In my previous, blog I called it a three-prong test -- failing to include the fourth requirement that a child must be involved.
Here were Cleland's instructions.
First, he emphasized the reasonable doubt standard for all four elements.
Judge Cleland explains the violation of the duty of care.
In the case of the PSU 3, the Commonwealth must prove -- beyond a reasonable doubt -- the PSU officials were in a supervisory capacity over Sandusky (or had a direct duty of care -- see Element 4).
Also, as noted in the February 1st blogpost, the question comes down to the definition of supervision.
The Commonwealth's argument was/is that PSU supervised Sandusky because of his emeritus status, his receipt of retirement benefits and perquisites, and that his charitable work at The Second Mile (TSM) was a benefit to the University.
The defense will counter showing that Sandusky was not under the supervision of PSU officials, to possibly including the following evidence:
-- The SERS decision;
-- Sandusky's retirement records from PSU;
-- The Second Mile's (TSM's) tax returns (IRS 990s);
-- Sandusky's tax returns;
-- Testimony of other emeritus professors; and,
-- PSU's decision to notify TSM because they were Sandusky's employer.
ELEMENT 2Element number two is that the PSU 3 engaged in a course of conduct that knowingly endangered children.
PSU officials reported the 2001 incident to Dr. Jack Raykovitz, who was a licensed psychologist, a mandated reporter, and in a supervisory capacity over Sandusky.
PSU officials had every reason to believe that Raykovitz had the training and experience to decide the necessary action to properly decide what to do about Sandusky showering with children.
The defense could also argue that PSU officials were told that the act of showering and hugging TWO boys was not criminal nor did it constitute child abuse at the close of the 1998 investigation. As such, a similar incident three years later did not set off alarm bells.
The prosecution will undoubtedly point to the February 27th email and Spanier's purported statement that PSU might become "vulnerable" if an incident recurs.
In response, the defense should challenge the authenticity of the email and request the Commonwealth provide the exact date the email was recovered and the chain of custody from recovery to the courtroom.
This would cause quite an uproar, but the fact of the matter is the Commonwealth has never established the exact date PSU turned this email over to the OAG -- and the Moulton Report stated that a thumb drive of PSU emails were turned over in 2011.
If the email is authentic, the Commonwealth should not object to this request and produce the information. If the Commonwealth objects, then it is almost certain that the email was subjected to tampering.
Of course, the prosecution will also attempt to use Mike McQueary's (uncorroborated) report as evidence that PSU officials were aware that a sexual act had taken place.
The preponderance of evidence about the 2001 report indicates that McQueary did not inform anyone of a crime nor did he provide specific details. Also, the credibility of witness McQueary will come under extreme scrutiny.
It will be interesting to see if any new evidence rears its head during the cross-examination of McQueary.
ELEMENT 3Element number three is that Sandusky was supervising the child.
Interestingly, the Commonwealth never established the identity of the victim in the 2001 incident, thus it is possible to argue that this element was not met in that instance.
The Commonwealth cannot absolutely prove that Sandusky had a duty of care to the unknown child because of parenthood or guardianship. Nor can it absolutely prove that Sandusky was supervising the child without some sort of permission slip or official documentation.
It is my opinion that the latter case is one of the reasons the Commonwealth did not try very hard to identify a victim in the 2001 incident.
By not doing so, the Commonwealth had a legal rationale -- albeit a very weak one -- for not charging TSM officials Bruce Heim and Jack Raykovitz (and possibly others) with failure to report and/or endangering the welfare of children.
If that argument applied to TSM officials, it would seemingly apply to PSU officials.
For the record, the jury found Sandusky guilty of EWOC for unknown Victims 2 and 8, likely based on his course of conduct.
ELEMENT 4Element number four is that the individual was a child under the age of 18.
Mike McQueary testified that he saw a boy between the ages of 10 and 13 in the locker room with Sandusky. Sandusky's course of conduct also provides proof, beyond a reasonable doubt, that he was in the locker room with a child.
Based on the evidence, a jury should conclude that the Commonwealth failed to meet its burden of proof on elements 1 and 2 -- and possibly 3, resulting in a not-guilty verdict for EWOC.