McGettigan's and Fina's Conduct Questionable At Sandusky Trial

Despite statements to the opposite, prosecutors put PSU on trial along with Sandusky, with eyes on future prosecutions of Curley, Schultz, and Spanier.  

By

Ray Blehar

Prosecutor McGettigan’s opening statement provided a preview of what would be the Commonwealth’s ongoing tactic of "anchoring" the idea of conspiracy and cover-up by PSU officials during the Sandusky trial, while leveling no culpability on The Second Mile.  To wit:

“Now is it possible that earlier signs of abuse were observed or heard by persons involved in The Second Mile occurred (sic)? No.  Were the Pennsylvania State University heard? I don’t know.  Is it possible those signs could have been responded to in a different benefaction? Indeed.”

McGettigan would later say that neither PSU or The Second Mile was on trial, but it was clear PSU was definitely in the prosecution's sights -- even though it is a fact that the charity knew of the 2001 allegation against Sandusky and did nothing.

For example, Second Mile Board Member, Bruce Heim, made the following statement:

“For five years, I worked out at the football facility, several times a week, and saw Jerry showering with children.  I said I don’t think it’s relevant. It happens every day at the YMCA. I remember the conversation specifically because it seemed like a nonstarter because of what Penn State said went on.”

But this trial was going to be about PSU's culpability whenever possible and McGettigan and Fina made that happen.

Victim 4

McGettigan and Fina's slanting of the facts did not stop at the opening statement but was evident when he called Victim 4 to the stand first. Victim 4 testified that all of his abuse took place on the PSU campus or at football related events, such as overnight bowl trips and pre-game activities at Toftrees.  He is the only victim in the Sandusky case to stay over at Sandusky's home and claim never to be abused there.  

The prosecution introduced numerous evidence exhibits during Victim 4's testimony that were football related, such as photographs of players with Victim 4, video clips of the victim, photos from the Alamo Bowl, and pictures of the PSU locker rooms.   This was all done up front to seal the narrative tying Sandusky's abuse of the victims to his role as a PSU football coach.

The following passage from the Washington Post's Joel Achenbach confirmed the effectiveness of McGettigan’s “anchoring” strategy that began with Victim 4 and continued throughout the trial:

“The prosecution had won the case on the very first day of testimony, when “Victim 4” took the stand and told his story. He was devastatingly credible. He spoke frankly, graphically. It was a brave performance, prefiguring the courage of the other seven victims who came forward later. When Victim 4 was at his most vulnerable as a boy, lacking a father figure, Sandusky had swooped in like a guardian angel…Sandusky had an abnormal fixation on the boy not yet in high school”

Victim 2

The prosecution's strategy to treat Victim 2 as an "unknown" individual also was highly questionable, if not unethical.   Victim 2 - who recently received a settlement from PSU - gave a statement to an FBI trained investigator that he was not abused during the incident witnessed by McQueary.   Based on the voicemail messages of Jerry Sandusky, it is presumed that Victim 2 was interviewed by the police in September of 2011 and, according the multiple sources, vehemently denied abuse took place.  Rather than call Victim 2 as a witness and have him possibly impeach the testimony of Mike McQueary, they lied to the jury and told them that they did not know the identity of the victim.  The defense team went along with the charade because they were not sure how Victim 2 would testify either.  He had obtained a civil lawyer and was now suing Sandusky for abuse.   

Quite frankly, the Victim 2 episode was just one of many occasions where the prosecutors (and judge) made a mockery of the system.

At the sentencing hearing, McGettigan made this blasphemous statement about Victim 2  (and Victim 8)...

"And two others will not speak because they're identities are known only to themselves, this defendant, and God. Perhaps the year has caused their silence or undeserving shame but the jury rightly did them justice and I speak for them and their rights to justice as well as those who testified before Your Honor."

Unfortunately for Frank Fina, Victim 2 is probably going to make an appearance at the trials of Curley, Schultz, and Spanier and things are sure to get very interesting.

Victim 3

At trial, Victim 3 testified that he met Sandusky in 1998 and stayed at Sandusky’s house over a three-year span (1998-2000).   However, Victim 3’s testimony on page 95 stated that his attendance at football games occurred only when Sandusky was an active coach, thus placing his interactions with Sandusky up to the year  2000.  Victim 3 stated he attended five games, which would be less than a full season’s slate of home games.

Victim 3’s admission of contact with Sandusky in 2001 was established in response to a question from prosecutor McGettigan in which he moved the last year of the three-year span of contact to 2001.

Not so ironically, Agent Anthony Sassano could not recall Victim 3 as one of the "endangered" children when he testified at the preliminary hearing on July 30, 2013 (page 7).

 Victim 5

The case of Victim 5 was discussed somewhat extensively in this blogpost.  It's clear from the Bill of Particulars that the date was changed from 1998 to 2001 to put Victim 5 in the timeframe for being "endangered" by the alleged failures of Curley, Schultz, and Spanier to make a report.

PSU's lawyers jumped on the bandwagon here as well, stating that the Victim 5 crime could have been prevented if PSU had acted on McQueary's report.  This is rather strong evidence that the PSU BOT is in bed with the prosecutors in ensuring that their firing of Spanier and Paterno is "upheld" by the trial verdicts in the upcoming trial.

Victim 8/Janitor Incident

This incident also has the earmarks of highly unethical behavior.  As I reported, the eyewitness janitor was not even working at PSU at the time of the incident and there were numerous other physical and temporal evidence that made the crime impossible, but the unethical aspects of the prosecutors in this incident appear to be three fold. 

First, the crime scene was changed from the Lasch Building Assistant Coach's locker room to the Staff Locker Room.  The reason for the change was the defense had argued that Petrosky could not see above the legs of Sandusky and the victim, thus the eyewitness would have had the same view - and been unable to see the crime.  Fina interjected and changed the crime scene during the defense's argument.  

The next questionable move was in arguing for the admission of the hearsay testimony, the prosecution stated a second janitor, Jay Witherite, would testify to bolster Petrosky's story.   Witherite never testified and no explanation was given for his absence.

The final apparently questionable move on the part of the prosecution was to wait until they had called all of their witnesses, then stipulated that the eye-witness, James Calhoun, was incompetent to testify.  The prosecution did not have a medical record to buttress this claim, nor did they have a letter from a doctor.  They simply said that Dr. Bharat Adroja, if he were present, would say that Calhoun was not competent.  And when did Adroja make this determination?  June 11, 2011 - the first day of the Sandusky trial.

Amazingly, the jury bought this nonsensical story about the janitor and convicted Sandusky on all five charges related to the incident. 

Louis Freeh used this incident to indict Penn State's football culture "from top (Spanier) to the bottom (janitors)" for enabling the abuse of children.

Closing Remarks

McGettigan and Fina will be featured on 60 Minutes Sports.  In earlier airing on CBSNews, the prosecutors stated they believe a cover-up by Schultz, Curley, and Spanier occurred and they stand behind the Freeh Report.  However, Fina stated that he saw no evidence that confirmed Paterno had a role in the cover-up, but went on to say Paterno should have done more.

While there is little doubt that Sandusky committed several crimes involving the abuse of children, there is also little doubt that he didn't receive a fair trial.  And now it appears the Sandusky prosecutors are attempting to ensure the other PSU officials don't get a fair trial either.  See below....

Rule 8.4. Misconduct.
 It is professional misconduct for a lawyer to:
(c)  engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d)  engage in conduct that is prejudicial to the administration of justice;