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.