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.

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.  


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 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 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 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.


  1. Thanks for this Ray - very instructive. Please write on.

  2. I wonder if it'll be the same "jury" that decided Attorney General Kane was guilty as charged? Maybe with new names and addresses? Why not, anything goes in Pennsylvania---it's a state that generates wealth for lawyers and the media by falsely accusing innocent people. Need a career boost? Move to Pennsylvania and make a fortune manufacturing scandals that go on without trial for up to a decade! There's good money and notoriety in it for dirty lawyers and dirty DAs. And best of all, fake journalists can actually be awarded a real Pulitzer Prize for "discovering" who the elite child molesters are that the courts have quietly enabled for decades! You can even make over 8 million dollars by writing fictitious reports that place the blame on the university and coach of your choice! Wow, only in Pennsylvania!

    1. Truthseeker,
      There surely are a lot of parallels between the two cases, however the witnesses in this case are not as strong as in Kane's. King and Morrow were the actual leakers who cut deals.

      The people who cut deals in the PSU 3 case (Baldwin, Harmon, etc) are not very strong witnesses, especially Harmon who was a disaster at the preliminary hearing.

      If this case goes to trial - and I am hearing rumors it may not -- the defense could have an absolute field day with Element 1 and render the rest of the elements moot.

  3. Ray - With such a glaring lack of evidence required to convict on the EWOC charge, why did the judge take it to trial? Seems like a huge waste of court resources and a possible miscarriage of justice if a runaway jury convicts.

    Do you believe the man who claimed to be victim 2 was actually the one McQueary saw with Sandusky?

    I thought the prosecution didn't want to have him testify because he gave contradictory testimony and didn't really corroborate McQueary, especially on his age at the time. That would have added doubt to McQueary's testimony.

    1. Tim,
      To quote Louis Freeh, "to avoid the consequences of bad publicity" Judge Boccabella decided to let a jury decide whether or not PSU officials had a duty of care and/or were supervising Sandusky.

      Had he dismissed the charges, the media would have crucified him for being the one to let PSU officials off the hook. If this goes to trial and the Commonwealth loses, they will tell the media that PSU officials got off on a technicality and were still guilty.

      The media will agree and PSU officials will still have a shadow over them. Unfair as hell, but no one said life was fair.

      I happen to believe that Mike didn't actually get a good look at the kid anyone in the shower with Jerry. At most, he saw the kid's head -- based on Dr. Dranov's version. Also, it is possible that the kid did not see McQueary, therefore the person who was actually there that night would have nothing to distinguish that night from any other night. At the time of the incident, Jerry was frequently with a couple other kids. One of them is on the record as refusing to testify for or against Jerry. Another was on Sandusky's potential witness list but didn't testify.

      I don't believe the person who came forward claiming to be V2 was the actual person there that night. Nothing he said puts him in the shower that night. Moreover, if Jerry knew who this kid was, then why did he not say so on November 4th or 5th? Instead, he waited until the kid came forward -- after he had pestered him over a period of months -- then claimed he knew the identity of the victim.

    2. So are you claiming, Ray, that McQueary never slammed his locker door and confronted Sandusky & the victim? I have always thought this was a suspicious addition to Mike's testimony that was brought on by the intense criticism he received for not coming to the boy's aid.

  4. Ray - All the more reason for the defense to have call the purported victim 2 to bolster their claim that the alleged victims were lying to get money. If the prosecution attacked the alleged victim 2's credibility, that wouldn't have been good for the prosecution.

    I thought the alleged victim 2 did report about the locker door slam before McQueary even "remembered" it.

    1. Tim,
      With all due respect, that is the LAST thing that the defendants want to do. That would inflame the jury against them and the Commonwealth would beat the drum even more regarding their lack of caring for the welfare of the victims.

      Victim 2 never said he heard a door slam. After being allowed to read the grand jury presentment, he told the investigator he heard a door close -- a sound he had heard before -- because McQueary was putting his shoes in the locker. Without seeing McQueary -- and because he said he had heard the sound before -- the sound of a door closing does not prove he was in the locker room on February 9th.

      You saw his drawing of the locker room, right? Not even close.

      The alleged V2 also admitted that his mother made up the story of snapping towels and sliding on the floor -- and that he went along with it.

      He also lied about his association with The Second Mile.

      In summary, his whole story about that night was made up -- likely at the urging of Jerry and interested parties from The Second Mile.

    2. I would estimate that Alan Myers has a .95 probability of being V2. He and JS seemed to be an item at the time. JS stood as his father at graduation and even gave the keynote speech. Alan also seemed to have a constant presence at SM headquarters and was gifted an automobile by Raykovitz ( a rather curious item). Raykovitz seemed to be aware of the relationship between JS and AM. Raykovitz also knew that Bob Poole was a Corbett kingpin.

      To date, nobody has skewered Eshbach or Fina over the fraudulent presentation. It would seem that any competent defense attorney would jump at the chance to portray prosecutors as a bunch of liars. Unless they have something up their sleeves, I think they really screwed the pooch on that.

      I think JZ got it right on much of his analysis. He totally missed the bigger story of corruption and prosecutor's misconduct. I also note that several teachers in LAUSD were charged with lewd acts with children for acts that JS admitted to doing. Only Micheal Jackson was allowed to get away with such things, but sleeping with 12 year old boys was soooo innocent!

    3. Ray - I was talking about the Sandusky trial when I said the defense should have called victim 2, not the upcoming trial for Spanier-Curley-Schultz.

      To me, not knowing the identity of victim 2 is automatically reasonable doubt. If I was on the jury, I would have acquitted Sandusky of those charges. I suspect that Sandusky is the only man ever convicted of sexually abusing an unidentified boy.

    4. He was also convicted of abusing a fictional victim after Cleland allowed highly prejudicial un-collaborated hearsay. Where, oh where, were the other two janitors at the trial? Did anyone ask why they failed to show up?

    5. Gregory,
      I would put AM's probability of being V2 at around 25-33%. As I wrote, Jerry was in contact with at least two other boys at the time that we know about -- and probably one or two more that we don't know about.

      Using 1998 as a reference, we know that Jerry was in the showers with V6, V4, Matthew Sandusky, and BK in the same timeframe.

      The janitor incident is a hoax and it is amazing that no one in the media -- or even on Sandusky's legal teams -- have raised the issue of the lack of the corroborating witness (Witherite).

    6. Tim,
      Well, he may not be the only man convicted of molesting an unidentified victim -- but it's a good bet he's the only man convicted of molesting TWO unidentified victims.

      AM was not called as a witness at the Sandusky trial because he was deemed unreliable by both sides. His performance at the PCRA hearing pretty much shows that he wouldn't have helped anyone's case.

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    8. Of course the janitor incident was a hoax, but it was the very instrument used to drag Joe Paterno and the football program into the fiasco. Why would Fina (and the Corbett cabal) do that when their target was Spanier? The fraudulent presentation was enough to prejudice the case by painting a picture of a little boy being pinned against a wall. And what did Fina have on these guys to make them commit perjury?

    9. Gregory Vernon - I don't think Attorney General Kelly intended to drag Paterno into it the way he was. She defended Paterno initially in the press by saying he followed the law and wasn't under investigation for any crime.

      The Trustees firing Paterno essentially declared him guilty. Governor/Trustee/former AG Tom Corbett and State Police Commissioner Frank Noonan publicly blamed Paterno to take the focus off their failures.

      I suspect that AG Kelly didn't advocate harder for Paterno because her boss Corbett was the one criticizing him. Kelly couldn't publicly feud with Noonan either because she depended on his troopers as investigators and witnesses.

  5. A thought for readers to consider: All of this political animosity and court case chaos in Pennsylvania and now the United States with Trump must have its origins in something, correct? Democrats and Republicans have always respectfully accepted each other as necessary opposing "teams" in the game of politics. We used to acquiesce the loss of our candidate as the nature of the game as in football, one team will win and one team will lose. Without this inevitability, there is no game. So in team sports or especially in one-on-one competition sports, there must be respect for the opposition because they provide the very opportunity for the challenge to even exist. So we sensed our democracy, as in sports, was working as an arena for healthy competition.

    But now enter cheating into the equation, or corruption as it were in government politics. As in the Trump election, there is supposedly very clear evidence of tampering. But for some reason, our government, and this is very curious, isn't acting on that evidence of tampering. Instead, they are just leaving us all to wonder and fight over "who" tampered with the election. Does it really matter "who"? No, it doesn't if the person elected to the most powerful position in our land was put in office by fraud. So how can we acquiesce gracefully if we are led to believe there was major cheating going on in this election? Russia or not, lies and cheating installed a President into office. We shouldn't be upset by the man, Trump. But we should be questioning why this highly stressful and chaotic situation is allowed to continue playing out.

    Governor Tom Wolf ignores evidence of severe corruption in the PSU 3 and Attorney General Kane cases. And those in charge of investigating and punishing the ones responsible for this election fraud are also ignoring the evidence. My point is, what is at the root of ignoring all of this wrongdoing? Ignoring the PSU 3's plight for 5 years is a violation of their constitutional rights. And ignoring the immunity granted to create false witnesses in Kathleen Kane's case is a violation of her basic constitutional rights to a fair trial. Governor Wolf is aware of this obvious cheating and lying within his state government, yet he announces that Kathleen Kane must resign. And he allows the PSU 3 to continue being tortured after 5 years by allowing a tainted jury trial to proceed instead of intervening. And yes, the jury will be tainted because the inordinate amount of time passing has allowed the PA Zionist media to taint the public's opinion with their falsehoods.

    So who is Governor Wolf beholden to? Is it the people? Or perhaps he's beholden to the same ones that tampered with the election for Donald Trump?

    1. The Zionest media? Here I thought that they worshiped Baal!
      Election tampering?? Only about 10% of the 1 million illegal foreign residents of Los Angeles were registered to vote, but most of them did vote. The rest protested Trump's election by waiving the Mexican flag. Putin? If he was trying to embarrass Hillary, he was Ivan come lately. He was beating on a dead horse that had more baggage than a 747.