Sunday, February 12, 2017 PSU’s appeal of the McQueary verdict alleges judicial bias

 

Sunday, February 12

PSU’s appeal of the McQueary verdict alleges judicial bias

PSU’s legal team says what should have been said all along – its employees were not legally required to report Sandusky in 2001.

By

Ray Blehar

Penn State University’s (PSU) legal counsel, after over six years of avoidance and obfuscation, finally stood up for itself and called out the court for its (continuing) bias against the University.  For many of PSU’s loyal alumni, the big news was that PSU finally argued that former officials Graham Spanier, Timothy Curley, and Gary Schultz were not mandated reporters under the child abuse reporting statute in 2001.

That is one among many of the appeal issues – although it one of the most important for setting the record straight -- and outing Pennsylvania's corrupt legal system.

The recent filings cite a number of instances in which Judge Thomas Gavin was unfair in his rulings and was biased in favor of former PSU assistant football coach, Michael McQueary. 

Pre-Trial Bias

The bias began before the trial got underway.

During the pre-trial discussion immediately before the first day of testimony, Judge Thomas Gavin, who was specially selected to preside over the case, made a statement that revealed his bias toward McQueary.

Judge Gavin apparently believed that Mike told "X,Y, and Z" to Curley and Schultz and also apparently had to be living under a rock to not know the “flip side.”

From the release of the November 2011 grand jury presentment and forward, top PSU officials, including Graham Spanier, Gary Schultz, and Tim Curley, testified that McQueary did not communicate that any type of sexual activity (i.e., X, Y, and Z) had occurred in the shower. 

This was reported many, many times in the media.

But if that wasn’t enough, how could it be possible that Judge Gavin was unaware that Curley and Schultz were facing charges of perjury for stating their disagreement that McQueary told them about a sexual encounter?

And there was even more to the other side of the story.

Dr. Jonathan Dranov also confirmed (on multiple occasions) that McQueary could not articulate what he saw – only what he thought he heard.  This received considerable media attention about one month after the presentment was released.  See below, my emphasis added:

However, Dranov told grand jurors that he asked McQueary three times if he saw anything sexual, and three times McQueary said no, according to the source.

 Dr. Dranov’s testimony at the Sandusky trial also received similar media attention.

On Wednesday, Dr. Jonathan Dranov testified that Mike McQueary did not tell him specifically that he saw an actual sexual encounter between Sandusky and one of the alleged victims in the shower incident. 

For the Judge to believe that there was no “flip side” or alternative to Mike’s story strains credulity.

That said, if the Judge wanted to hear the “flip side,” then his pre-trial decision to not render a stay in the case until the criminal trials of Curley and Schultz concluded was certainly not in furtherance of finding out.

Judge Gavin’s only rationale for moving forward with the McQueary case was because he wanted to get it over with.  

But don't rule out ulterior motives.

Trial Bias

The failure of the judge to grant a stay also resulted in another bias being introduced.   

Curley and Schultz were not going to be useful witnesses if they were forced to appear at the McQueary trial because of their still pending criminal proceedings.  If they had appeared, they would have invoked the Fifth Amendment on every question.  

Curley and Schultz were not sued by McQueary, thus they were non-parties to the lawsuit and not under the control of PSU.

Judge Gavin instructed the jury that they could consider an adverse inference to questions that would have been directed at Curley and Schultz.  This is typically not exercised in the cases of non-parties in which the defendant has no control.  But Gavin went down that road anyway.

The PSU appeal similarly held that Judge Gavin threatened to use adverse interpretations in situations where witnesses, such as Graham Spanier, were advised to invoke attorney-client privilege.

While PSU didn’t state this in the appeal, those attending the trial and/or who have read the transcripts know that Judge Gavin overruled nearly all – if not all – of the objections by PSU’s attorneys.

Even when fairness dictated that PSU objections be granted so that they were provided with the same opportunities to present evidence as the plaintiff.

Trial Bias Impacting Defamation Decision

In the most obvious display of bias, Judge Gavin would not allow PSU attorneys to introduce media accounts that were published in the immediate aftermath of the presentment that painted McQueary in a negative light (i.e., he was a coward, deserved to die, etc.).   Judge Gavin considered these accounts to be hearsay, even though PSU didn’t offer them as the truth.  Rather, they were offered as examples of defamatory statements that were made public after the presentment.

McQueary alleged that he was defamed (apparently solely) by then President Graham Spanier’s statement that gave “unconditional support” to Curley and Schultz.  

 While those of us living in the real world know that it was the Attorney General’s grand jury presentment that painted an unknown graduate assistant as the world’s biggest coward and that the media accounts that defamed (?) McQueary had their roots in the presentment.

Later in the trial, however, the Judge reversed his “hearsay” ruling and let McQueary’s legal team introduce blogposts and news accounts to show the “result” of Spanier’s alleged defamatory statement.

The most amazing thing about the defamation verdict is that the jury somehow ignored the fact that PSU had begun drafting the statement in late October – before there was a grand jury presentment and before Spanier and the public knew of McQueary’s involvement.

It appears that the jury decided this case on sympathy – not facts.

Beyond Bias – An Advocate for the Plaintiff

However, what went beyond bias was when Judge Gavin started acting as if he was part of the McQueary legal team – and he did it on two occasions.

In the first instance, Judge Gavin asked former Deputy Assistant Attorney General Jonelle Eshbach about the construction and approval of a grand jury presentment.  Eshbach’s response was that it was submitted to and then reviewed by a judge for approval. 

To the unwitting jurors, this explanation likely caused them to put immense faith into the words and descriptions used in the November 2011 presentment.

It is likely that few of them knew that the supervising grand jury judge, Barry Feudale, had been forced to step down for misconduct and that he later leaked secret information to the press.

Next, in one of the biggest errors in the case, Gavin introduced the fallacious argument that (while instructing the jury) that Curley, Schultz, and Spanier were mandated reporters in 2001.   The judge concluded that the men were mandated reporters based on Spanier's alleged statement (in an unauthenticated email) of "becoming vulnerable for not reporting."  

To be clear, Judge Gavin either didn't bother to check the law or simply ignored it to press an agenda.

Gavin's conclusion that PSU officials were mandated reporters was not based on the law. 

Given what has occurred over the last six years, it was likely the latter.  This case and other cases (e.g., Monsignor Lynn, Kathleen Kane, Porngate, etc.) have destroyed the idea that there is any integrity at all in Pennsylvania's criminal justice and legal systems. 

As such, it would be folly to try to predict the success or failure of PSU's  appeal.  

Doing the Right Thing

At the time of the McQueary trial, the failure to report charge was still pending and was likely the reason why PSU attorneys did not bring up the misapplication of the law then.

Now that the charge has been dismissed, it appears that PSU’s legal team has finally gotten permission to start revealing some of the long known truths of this case in an attempt to win a court case.

It is truly sad that it took over six years to get to this moment.

This entire scandal could have been defused if the University’s and the Board of Trustee’s (BOT) legal teams had actually used the law to decide what to do in response to the (bogus) charges. 

In short, they would have stuck to Spanier’s November 5th statement that the charges against Tim and Gary were “groundless.”

The reasons that didn’t happen in November 2011 are many.

Among the key reasons PSU threw its own under the bus rather than using the law to defend itself were:

 1) the child abuse reporting law becoming crystal clear to the public and putting an end to the #FakeNews about PSU's responsibility; 

 2) the Attorney General’s office would have been exposed for its selective prosecution of Curley and Schultz; and,

3) the public learning that officials at The Second Mile were legally responsible to make a report in 2001.  

Mounds of evidence over the last five years strongly indicates that people in Harrisburg, people in judge’s robes, and an inner circle of members of the PSU Board of Trustees were making sure none of those things happened.

The ten million dollar question is why were these politicos, judges, and “rotten apple” BOT members protecting The Second Mile and letting PSU get saddled with the blame and the bills?

It’s a question that many PSU alums would like new Attorney General Josh Shapiro to take a stab at answering.

Monday, October 9, 2017 - Correcting the Record: Part 1: McQueary's 2001 Eye-witness Report

 

Monday, October 9

Correcting the Record: Part 1: McQueary's 2001 Eye-witness Report

Most of the publics' knowledge of the Sandusky scandal was obtained from media reports that were based on lies propagated by government officials, the NCAA, and former FBI Director Louis Freeh.  There's so many lies out there that it will take a series of posts to debunk them all.

By
Ray Blehar

FALSE  

McQueary reported a rape to Joe Paterno and other Penn State officials in 2001.

THE TRUTH

McQueary did not witness nor did he report a rape to anyone in 2001.

ORIGIN OF THE LIE

The Sandusky grand jury presentment of November 4. 2011 provided a misleading account of what eye witness Michael McQueary reported to Joe Paterno about the 2001 incident.  Rather than stating explicitly what McQueary reported, it stated he reported "what he had seen" which led the media and the public to erroneously conclude the explicit details were reported to Paterno.

EVIDENCE REFUTING THE LIE

1.  The eye witness, Mike McQueary, took issue with the accuracy of the statement in the grand jury presentment.  On November 10, 2011, he sent this email to Office of Attorney General (OAG) prosecutor Jonelle Eshbach and Agent Anthony Sassano -- telling them he felt his "words were slightly twisted."

2.  In that same email to the OAG, McQueary gave a very equivocating and uncertain statement regarding "whatever it was" that  he observed in the locker room.

3.  On November 6th, Joe Paterno issued a statement in an attempt to clarify what was reported to him (my emphasis added).  

"As my grand jury testimony stated, I was informed in 2002 by an assistant coach that he had witnessed an incident in the shower of our locker room facility. It was obvious that the witness was distraught over what he saw, but he at no time related to me the very specific actions contained in the Grand Jury report. Regardless, it was clear that the witness saw something inappropriate involving Mr. Sandusky. As Coach Sandusky was retired from our coaching staff at that time, I referred the matter to university administrators."

4.  On  December 16, 2011, a little over one month after the presentment was released, McQueary clarified (under cross-examination) that he never used the terms "anal or rape in this since day one."   To be absolutely clear, he did not use those terms with his father, John McQueary,  when making the phone call immediately after witnessing the incident, with his father's business partner, Dr. Jonathon Dranov within hours of the incident, with Joe Paterno the morning after, and  with then Penn State University officials Timothy Curley and Gary Schultz approximately ten days later.

And:

5.  On June 12, 2012, McQueary testified that he could not see "insertion" or "genitals," but described the positioning as "extremely, extremely close as you could be."

6.   On June 22, 2012, the jury correctly found that Jerry Sandusky was not guilty of Count 7: Involuntary Deviate Sexual Intercourse (IDSI) related to the alleged rape witnessed by McQueary.  The media made very little of the acquittal for the alleged crime that created the outrage against Paterno and Penn State.

7.  Subsequent testimony in numerous proceedings from 2011 through 2017 by John McQueary, Dr. Dranov, Curley, and Schultz confirmed that no explicitly sexual terms were used by McQueary when he described what he actually saw.

THE MEDIA IGNORED THE EVIDENCE

8 .  After McQueary testified (on December 16, 2011) to not providing explicit details in his report to Paterno and others, the New York Times reported the opposite.  See below:

"By PETER DURANTINEDEC. 16, 2011

Continue reading the main storyShare This Page

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HARRISBURG, Pa. — A Penn State assistant football coach testified Friday that in 2002 he saw Jerry Sandusky sexually assaulting a young boy and that he reported it, in graphic detail, to Coach Joe Paterno and two senior Penn State University officials."




9.  At the conclusion of the Sandusky trial, Sara Ganim made only a passing comment about the acquittal on the allegation that caused the removal of  Joe Paterno and Graham Spanier and formed the basis of her Pulitzer prize winning stories on the "Penn State sex scandal."   In total, the Harrisburg Patriot News ran nine stories on the verdicts and Ganim's was the only one to (briefly) mention that not guilty verdict.




10.  After Sandusky's sentencing in October 2012, the New York Times incorrectly reported that McQueary testified that Sandusky sodomized Victim 2 -- even though he had not done so.  The Times column also failed to mention Sandusky was acquitted of sodomizing the boy.

"One of Mr. Sandusky’s victims was a young boy who was sodomized by Mr. Sandusky in the Penn State football shower room, according to testimony by Mike McQueary, a former assistant coach." 

SUMMARY

The false allegation that McQueary witnessed a rape and reported it to PSU officials originated with the Pennsylvania OAG and the media stuck to that narrative even though it was refuted by the evidence in the case and the verdict of the Sandusky jury.

Next...Part 2:  "The rapes of those boys occurred in the Lasch Building."

Sunday, February 5, 2017 - What the jury must decide for EWOC charge.

 

Sunday, February 5

What the jury must decide for EWOC charge.

While there were many irregularities in the Sandusky trial, Judge Cleland's instructions on the EWOC charge wasn't one of them.

By
Ray Blehar

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.  

ELEMENT 1

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 2

Element 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 3

Element 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 4

Element 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.

CONCLUSION

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.