Duke, Penn State, and the Elephant in the Room

There are many parallels between the rushes to judgment in the Duke case and at Penn State.  The biggest difference between the two is the missing elephant at Duke.

by
Ray Blehar

Not too long ago someone posted Coach K's interview with CNN's Piers Morgan.  Coach K stated that the  PSU BOT should have handled things differently with regard to Paterno's dismissal -- and I think most people agree with that.  However, the most interesting part of the interview came at about the 1:00 minute mark when Piers asked:

"if such a situation had happened at Duke..."

Piers was talking about having a Sandusky like situation where someone is "innocent until proven guilty" and how the school should respond in such a situation.

I guess with the passage of time people forget.  Duke had a very similar rush to judgment with it's lacrosse team, who were immediately found guilty (by the media and the Duke administration) of raping a stripper.

The parallels in the case are quite striking.  Briefly:
-- an individual levied false charges at people at the university
-- a witness close to the individual did not corroborate the accuser's allegations
-- the accuser gave inconsistent accounts of the incident
-- the prosecutor pressed charges without possessing key evidence
-- the university and the media rushed to judgment and threw the accused under the bus immediately
-- evidence later came out that cleared the accused (most of us are waiting for the upcoming trials of Curley, Schultz, and Spanier to do just that).

Let's get to the specifics.

The Accusers

In the Duke case, the accuser, Crystal Mangum (a stripper), told police that members of the Duke lacrosse team raped her after her performance at one of the homes of the Duke players.   Mangum had been taken into custody by the police after an incident at a supermarket parking lot, where she refused to leave the car after an argument with the other stripper who worked the Duke party.

In the Penn State case, the accuser, Mike McQueary, told the police that he saw Sandusky doing something sexual with a young boy in the showers and that he had passed on the details to University officials.  The police were led to McQueary by an anonymous tip that he had told others about this incident in a chat room.

The Witness

In the Duke case, Mangum's co-worker, Kim Roberts, refuted Mangum's account of the rape. In her initial statement to police, Roberts said she was with Mangum the entire evening, except for five minutes.  Roberts was incredulous when she heard that Mangum had levied rape charges.

 In the Penn State case, Dr. Jonathon Dranov, refuted McQueary's account of him witnessing a sex act in the showers.  Dr. Dranov asked McQueary on three different occasions what he had seen and on none of those occasions did McQueary admit to seeing anything.  Dr. Dranov indicated the incident happened behind a wall and that McQueary saw an arm reach out and pull the child back behind the wall.

Inconsistencies

In the Duke case, Mangum initially told the police she was raped by twenty white players, but later reduced the number to three.  Mangum did not consistently choose the same three players when asked to identify them from photographs.  Also, she changed the time of the alleged rapes, first saying the occurred between  11:35 PM and midnight, which was refuted by phone records and photographs of her performing at the party.  Mangum reported several different accounts of the rape incident to the police, changing the details of how she was abused and who the attackers were.

In the Penn State case, McQueary initially told the police he looked into the showers twice.  After being hammered in the press for not stopping the alleged assault, he changed his stories to looking three times  and making sure the assault was stopped.  McQuery's testimony under cross examination at the preliminary perjury hearings in December 2011 was vague regarding what he told PSU officials (more on this in an upcoming blogpost). Finally, McQueary originally testified that the incident took place in 2002, but later the date was changed to 2001.

The Prosecutor Doesn't Have Evidence

In the Duke case, DA Mike Nifong, the prosecutor, ordered DNA testing of 46 of the 47 members of the Duke lacrosse team - excluding the one black player.  On April 10, 2006, the results came back showing that none  of the players' DNA was found on Mangum.  DA Nifong stated he had other evidence that would prove his case. On April 18, 2006, two players, Seligmann and Finnerty, were indicted on rape, kidnapping, and other charges.  On May 15, 2006, a third player, David Evans, was indicted for rape, kidnapping, and other charges.

In the Penn State case, then AG Tom Corbett initiated the investigation, but Linda Kelly had taken over by the time the investigation involved PSU.   John McQueary, Joe Paterno, Dr. Dranov, Tim Curley, and Gary Schultz were called as witnesses to verify McQueary's account. The anonymous tipster, nor anyone else who may have been in the chat with McQueary were not called as witnesses. Only one of the witnesses, Paterno, testified to an account that may have corroborated McQueary's allegations of a sexual assault.  Paterno later made a statement that he was not told of any of the specifics outlined in the grand jury testimony.  Despite the fact that the prosecution had no corroborating witness to the account McQueary told to Curley and Shultz, she charged both men with perjury and failure to report child abuse.  One year later, she levied perjury, failure to report, child endangerment, and criminal conspiracy against former PSU president, Graham Spanier.  She added the criminal conspiracy and child endangerment charges against Curley and Schultz.

The Rush To Judgment

In the Duke case, the University president, Richard Brodhead, made a decision to forfeit the next two lacrosse games, then eventually suspended the rest of the games that season.  He placed the players who had not yet graduated on suspension from the school.  The lacrosse coach, Mike Pressler, resigned over the scandal (later revealed he was forced).  The media framed the incident a privileged white athletes committing crimes against a black victim.  The public was outraged over the allegations and protested outside the players homes and at the courthouse. A candlelight vigil was held for the victim as part of a "Take Back the Night" march organized by students. DA Nifong used this characterization of the incident to his advantage, winning a close, racially polarized election.

In the Penn State case, the co-chair of the Penn State Board of Trustees, John Surma, made the decision to cancel Paterno's Tuesday morning press conference and fire President Graham Spanier and Joe Paterno.  AD Tim Curley was placed on adminstrative leave and Gary Schultz went back into retirement.  Paterno announced his intention to retire at year's end, but the BOT (led by Surma) terminated him shortly after he announced his retirement.  The media has framed the incident as top university officials and Paterno sacrificing children for the sake of the football program and the prestige of Penn State.  The public was outraged over the details (mostly false) contained in the grand jury presentment.  A candlelight vigil was held for the victims.  A fundraising effort to promote child abuse awareness was organized by students. Former AG Tom Corbett slow rolled the Sandusky investigation to not upset PSU supporters prior to the 2010 gubernatorial election and won the election by close to 10 points.

Evidence Reveals False Charges and Malicious Prosecution

In the Duke case, the DNA inconsistencies were announced in April 2006, yet Nifong pursued the case, essentially using Mangum's testimony as the evidence of rape and the other charges.  On December 22, 2006, Mangum admitted that she was not sure that she was raped.  Nifong dropped the rape charges, but continued to pursue the charges of kidnapping and other sex crimes.  On December 28, the North Carolina state bar filed ethics charges against Nifong for abuse of prosecutorial discretion by withholding the DNA evidence from the defense.  In January 2007, Nifong asked to be removed from the case and the case reassigned to the Attorney General, Roy Cooper.  In April 2007, Cooper proclaimed the Duke students innocent of all charges.

In the Penn State case, the inconsistencies in McQueary's story began almost immediately after the grand jury presentment was announced. On November 15, 2011, McQueary leaked an e-mail stating that he had broken up the incident and reported it to the police.  In December, McQueary testified that he had looked into the shower three times, not two as he previously testified and that he had slammed his locker to break up the activity.  In this original account of the incident, he looked twice, then immediately left the locker room. Under cross examination in December, McQueary stated he only told his father, Dranov, Paterno, Curley, and Schultz about the incident.  Apparently, Mike forgot about all those people he told in the chat room.  However, when asked who he told between observing the incident and reporting it to Curley and Schultz, he stated he could not remember if he told anyone else.  This begs the question, did McQueary tell other people who don't corroborate his story?   Perhaps, the AG knows the names of some of the "chatters," but has not revealed them.

The Elephant in the Room

What differentiates the Penn State case from the Duke case is the "elephant in the room."  In other words, an obvious truth that is being ignored.   That elephant is the role of The Second Mile Executive Director, Dr. Jack Raykovitz in not protecting the children of Second Mile from Jerry Sandusky

From the beginning, anyone who has followed this case knows the PSU AD Timothy Curley reported the Sandusky shower incident to Dr. Raykovitz, who was/is a mandated reporter under the law and should have immediately reported the incident to either CYS or DPW.   Raykovitz admitted discussing the incident with TSM board member, Bruce Heim, who considered it a non-incident.   As such, it was not shared with other TSM board members nor reported to authorities.

Inexplicably, AG Linda Kelly did not charge Raykovitz or Heim with failure to report or with child endangerment.  Also, in his opening statement at the Sandusky trial, prosecutor McGettigan stated that no one at Second Mile knew or had heard anything about Sandusky's abuse.

The Penn State BOT, who quickly threw its officials under the bus, made no mention that TSM should have reported it upon being informed by Curley.  The lawyers on the BOT could have easily justified that PSU officials complied with the law by reporting to TSM and defended the University.  Instead, they rolled over.

And the media has been stunningly silent on the matter, even though they often referred to TSM as a "victim farm" of Sandusky.

The Impending Investigation of the Sandusky Case

Recently elected AG Kathleen Kane stated the investigation of the Sandusky case would be among her top priorities once she takes office.  She will hire an assistant attorney general to lead the investigation and she vows to leave no stone unturned.  This will take time to get going, but we anxiously await that investigation.

However, I have a suggestion for Ms. Kane about what she should do immediately after being sworn in....

...charge Dr. Jack Raykovitz with failure to report child abuse and with endangering the welfare of children.