Wednesday, September 13

Legal Issues with Ganim's 2011 Police Report

If a police report from November 23, 2011 existed, as Sara Ganim's and CNN's story claimed, then why wasn't it part of the evidence in the Conspiracy of Silence and Sandusky cases, as well as the Freeh Report?

Ray Blehar

Sep 13, 2017: 11:24 PM EDT, Updated: 11:42 PM EDT, Updated Sep 14, 2017: 10:22AM

As is typically the case, readers of this blog provide many insightful comments in the comment section, by text, and by email.

There were some great points made by Tim Berton on Monday's blog post, in which he pointed out that a November 23, 2011 police interview could  have been a rehearsal for Mike McQueary's December 2011 preliminary hearing testimony.  He also pointed out the opening statement by McGettigan didn't make sense and concluded it was a transcription error.   

As I wrote tonight's post, I found yet another transcription error.  

This is important because many have contended Paterno didn't tell the grand jury "it was a sexual nature," but rather asked "was it a sexual nature?" The words were transposed.  And a question made more sense based on the equivocating nature of Paterno's testimony.

That issue remains open for debate.

Back to the point of tonight's post.

I  received some exceptionally insightful comments via text message from a gentleman who does consulting work for the Federal Bureau of Investigation (FBI).  He pointed out that the 2011 police report undoubtedly would have come out during the court case of former Penn State University (PSU) President Graham Spanier.

Evidence that Spanier Was Lying About 1998
He stated that if  a police report from November 23, 2011 contained the information McQueary alleged about Paterno's knowledge of 1998, wouldn't McQueary have testified to that at the trial of Spanier?

Indeed, if Paterno had admitted to knowing about the 1998 incident, prosecutors would have definitely wanted to use that evidence to make a case that Spanier was lying about his lack of knowledge of that incident.

While McQueary couldn't testify to the hearsay, if the prosecution had that informaton in 2011, wouldn't they have re-interviewed Paterno in an attempt to get a first hand account?  And if they did, prosecutor's could have shown that everyone in the decision making loop at PSU knew about 1998 and that it would have strained credulity that the President would not know.

Spanier was the ultimate target of the AG's investigation.

But prosecutors didn't ask Paterno about his statement when he was re-interviewed on December 6, 2011.

He also pointed out that if the Attorney General (AG) had this inculpatory evidence in its possession and withheld it, then what exculpatory evidence was withheld?

Spanier's attorneys should be asking that question.

Ganim/CNN:  Unwittingly exposed discovery violation?
Ganim, who was formerly a crime and courts reporter, may have unwittingly exposed discovery violations by the AG.  Also, her explanation of the courtroom strategy (for not using the information from the police report because to avoid bringing Paterno into it) doesn't hold water. 

McQueary made several hearsay statements about Paterno throughout the judicial process, including at the Sandusky trial.  Interestingly, McQueary testified his meeting with Paterno lasted about five minutes because the former coaching legend "didn't like to talk or (sic) a long time."

Paterno didn't like to talk for a long time?  But he takes the time to trade in rumor mongering with a lowly grad assistant?

I'm sure Mike will clear this all up in one of the versions of his memoirs.

"Jerry doesn't like girls"
If the prosecution believed Mike McQueary was a credible witness, then it is very difficult to understand why Dottie Sandusky and Sue Paterno weren't called to testify at the Sandusky trial about Dottie's alleged statement.

The prosecution was making the case that Jerry was a serial preferential child molester that preyed on young boys.  While Dottie might lie about this statement because of her marriage to Jerry, Sue Paterno would have no reason to lie.

Dottie, who testified at her husband's trial as a defense witness, was not asked if she made that statement.

Prosecutors did not call Sue Paterno as a witness.

Missing From Freeh Report
There is little doubt among anyone who has followed the scandal that PSU's Board of Trustees hired former FBI Director Louis Freeh to conduct an "investigation" for the purpose of justifying its decision to remove Spanier and Paterno from their positions on November 9, 2011.

There is also substantial evidence, especially emails obtained by PSU alumnus Ryan Bagwell and court documents in the Corman v. NCAA case,  that Freeh and the AG were collaborating and sharing information regarding the investigation into PSU officials.

As such, it is difficult to believe that the AG did not provide the 2011 police report to Freeh so that he would have more evidence of Paterno's knowledge of the 1998 incident.   The Freeh Report's only evidence that Paterno had knowledge of the 1998 incident was a single email that was ambiguous at best.

But Freeh, a former prosecutor, didn't include this evidence in his report.

The existence (reality) of the 2011 police report is crumbling given its importance to helping the court cases of the prosecution,  in justifying the decision to remove Paterno by the PSU BOT, and because its suppression would have violated discovery in cases involving Mike as a witness.

It's time for CNN and Ganim to put up or shut up.

Note:  This post was updated on September 14 to reflect Paterno was re-interviewed on December 6, 2011, but not asked about his statement regarding a second incident.


  1. I haven't read the Spanier trial transcripts because Dauphin County never put them online.

    Based on Ganim's sources, the prosecutors didn't want to make the Sandusky trial about Paterno. They may have had the same tactic for the Spanier trial.

    Spanier's defense would likely have made a hearsay objection because it is standard for the defense to do so.

    Both prosecution and defense may have been afraid to ask McQueary about Paterno hearsay given McQueary's pattern of coming up with entirely new Paterno hearsay when he testifies. He burned the defense at the Spanier prelim with self-serving Paterno hearsay that Old Main screwed it up, and Penn State was going to scapegoat McQueary.

    I suspect McQueary was also instructed by prosecutors not to bring up Paterno's "second complaint" comment even if asked. he failed to mention it at the Curley-Schultz prelim even when asked directly "What did he [Paterno] tell you?"

    Spanier's lawyers probably thought that legally McQueary had no detrimental testimony against Spanier because he had never spoken to Spanier about Sandusky. They just miscalculated that the jury did not follow the law or use the reasonable doubt standard.

    I can only surmise that the jury believed the prosecution that Curley and Schultz perjured themselves when they said McQueary never told them of a sexual assault. They had McQueary's contradictory testimony to base that on so there was some evidence for that.

    The jury also then had to believe that Curley and Schultz also perjured themselves when they said they never told Spanier of a sexual assault. McQueary provided no evidence of that so I really don't know where the jury got that.

    1. Tim,
      I agree that the prosecution didn't want the case to be about Paterno, however, it allowed McQueary to make hearsay statements about him throughout the proceedings (from Sandusky to Spanier).

      The post covers how the prosecution could have gotten around using the hearsay by having a record of an interview with Paterno.

      The jury's verdict in the Spanier case was because they wanted to go home for the weekend. Period. It made no sense to convict on one EWOC count and not the other.

    2. Paterno was too far removed from Spanier to provide solid evidence. There was never a claim that Paterno talked to Spanier about Sandusky in either 1998 or 2001.

      I can see why the prosecution didn't want to make the focus about Paterno because the jury may have been reluctant to vote Sandusky and Spanier guilty if it drug Paterno down with them.

      The jury never explained their reasoning but maybe they believed that Curley and Schultz pleading guilty to EWOC made Spanier guilty because they were his employees. The 2007 law does say "a person that employs or supervises" someone who is guilty of EWOC can also be guilty.

      The judge ignored the constitutional ban on retroactive laws and the judge and jury ignored the part that required "knowingly" endangering a child.

      I don't buy that there was evidence, beyond a reasonable doubt, that Spanier knew Sandusky was going to abuse unknown boys years in the future.

  2. I doubt prosecutors violated discovery by not turning over this police report as that is excellent grounds for a mistrial. Ganim said they threatened Sandusky's defense not to bring it up or they'd bring in more old victims. Maybe they made similar threats against Spanier's defense. They could have threatened to call more than one post-2001 victim.

    It may seem odd that Freeh did not use McQueary's "second complaint" comment but I think Ganim's prosecution sources explained it. They didn't want that to come out so either they told Freeh not to use it or didn't give it to him.

    I bet the prosecutors got to review the Freeh Report prior to release and to veto anything in the Freeh Report that may have negatively affected their case.

    Too, that revelation also makes Mike McQueary look worse because it gave greater impetus for him to have phoned the police in 2001. It also defies logic that McQueary would not have asked Paterno what the previous complaint involved yet that is what he alleged.

    1. Tim,
      Prosecutors can't pick and choose what evidence to provide in discovery if it is from a material witness.

      The Conspiracy of Silence case, in a nut shell, came down to McQueary's credibility. As such, any and all statements he gave to police should have been in evidence, as consistency/inconsistency goes to someone's credibility.

      I really don't think the prosecutors reviewed the Freeh Report -- or if they did, they didn't do it very closely. The Freeh Report contains much information that was harmful to the Conspiracy of Silence case, as I've documented frequently.

      The AG was providing secret grand jury information to Freeh all along. I sincerely doubt that this police report, if it truly exists, was excluded.

      I agree this new revelation adds to McQueary's credibility problem. It seems every time he talked to the police or testified, some new nugget of information came out as the details to his story changed.

      It's very easy for people to get the general part of a story right, but it's always the details that trip them up.

      For instance, Mike testified that he took a couple quick, one to two second glances through a reflection in a mirror, to see what he alleged was going on in the shower. In those quick glances, he testified he saw "very, very slow subtle movements." How does one observe slow, subtle movements in a quick glance?

      McQueary then added that even though the movements were slow, that didn't mean that the movements weren't the cause of the slapping souunds he heard as he entered the locker room.


      When has a slow, subtle movement of skin-on-skin ever made a slapping sound? Slowly press you hand (which is capable of producing a slapping noise) against your butt. Did it make a slapping sound? Of course not.

      The details of Mike's stories don't add up. The problem has been that no one of any of the defense teams has grilled him about most of these details.

  3. I said I don't think the prosecution would have withheld the police report They didn't have to because they used threats and blackmail to get the defense to comply. They got Sandusky to waive his prelim with threats of higher bail or revoking his bail. They prevented Sandusky from testifying by threatening to call Mike Sandusky as a rebuttal witness. Ganim's sources just revealed another threat they used to prevent the defense from bringing up Paterno.

    Freeh publicly stated that he would do nothing to interfere with the AG's case. He said he didn't interview Mike McQueary, police chief Tom Harmon and unnamed others at the AG's request. I suspect that included Paterno given Ganim's revelation that prosecutors didn't want the focus on Paterno.

    I think Sandusky's defense was inept, which explains why they didn't do better job with McQueary. Spanier's defense may have thought McQueary had nothing on Spanier or maybe they too had been threatened by prosecutors. Maybe the judge limited attacks on McQueary's credibility as well.

    I would have thought that McQueary's claim he was a victim of child sex abuse was a material issue for Spanier's defense to explore. Heck, a judge in a sex abuse case asks each potential juror if they were a victim of sex abuse.

    1. Tim,
      It's not in evidence, therefore it was withheld.

      The AG used threats to get witnesses to comply. Brad Bumsted, in Keystone Corruption, wrote that witnesses either would work with Fina or they would become defendants. Tom Harmon was one of those people and so was Kimberly Belcher.

      Freeh's public statements were mostly lies. He was working with the AG and was using his access to PSU information to unburden the AG from having to get subpoenas. For the most part, Freeh was on a fishing expedition and he didn't catch anything.

      All of the evidence used in the Freeh Report was turned over to the AG by PSU long before Freeh arrived. The only significant thing that Freeh might have unearthed with his searches of cell phones and other devices was McQueary's sexting.

      Sandusky's defense attorney, Joe Amendola, was not inept. He's a very good attorney. However, he was influenced not to implicate The Second Mile, therefore Sandusky's best chance at being acquitted went out the window.

      Finally, Ganim's source regarding prosecution strategy is full of crap. According to Ganim's story, the prosecution didn't put Penn State on trial. But the evidence clearly shows that it did -- and it's focus was PSU FOOTBALL.

      PSU FOOTBALL and Joe Paterno were synonymous for 50 years.

  4. Ray - How do you know that the AG did not turn that particular document over to Sandusky's defense?

    If they didn't turn it over, that may explain the timing of its release now that the Sandusky appeal judge has declined further oral arguments and looks about to rule.

    Not everything turned over in discovery is brought out in court.
    We never heard from ADA Karen Arnold, and we know she testified at the grand jury about the 1998 investigation. Didn't Sandusky's defense get to see all the grand jury testimony?

    After waiving the prelim, Amendola said about McQueary "We have enough inconsistencies at this point to totally wipe him off of our case." Amendola was going to cross examine Mike McQueary but then told his partner to do it with just a one hour notice.

    A good attorney doesn't make promises he can't keep.

    Amendola may have been a good lawyer for run of the mill cases but this was a very unusual case. If Thomas Mesereau, Michael Jackson's lawyer, had been in charge of the defense, maybe the result would have been different.

    I agree with you that the prosecution seemed corrupt with a win at any cost attitude. I'm not sure how implicating Second Mile would have helped Sandusky.

    Ganim may have been right that the prosecution didn't want McQueary to mention that Paterno told him 2001 was the "second complaint." I wouldn't be surprised if the prosecution told him not to mention that.

    Belcher did do wrong so they had legit leverage on her.

    If Harmon lied that Schultz didn't tell him about the 2001 complaint, then why didn't Schultz say so? A report by Schultz to Harmon in 2001 would have cleared everyone else and put it all on Harmon.

  5. In all my life, I've never seen a non-existent document get this level of scrutiny. It's another hoax. You should be used to hoaxes by now. The only response should have been something like Whiskey, Tango, Foxtrot, another Ganim hoax! My cat even yawned. She's nothing but a tool whose utility has come to an end....a puppet like McQuerry whose only use was to take down Spanier and Paterno. Oh, the culture of football! I'm starting to think that Sandusky didn't anything remotely criminal. If he did, why all the hoaxes and ruses?? There should be evidence all over the place. Where, oh where, is the physical evidence? It took years of coaching and badgering and cycling between police, prosecutors, civil attorneys,and Gillum to get the script right with the "victims". Years! Then it goes from getting soaped up in a shower to 100 blow jobs. Sounds like Shubin got carried away with the scripts he wrote.

  6. Without all the biased reporting, this document actually makes Paterno look better because it repudiates the bogus 1970s accusers. Ganim and every other reporter was too biased against Paterno to use common sense and see that.

    Paterno saying "second complaint" in 2001 meant that the first complaint was 1998, as already proven by Curley's testimony and email. That means the 1970s accusers are frauds.

    It makes sense that the police would be interviewing McQueary again on Nov. 23, 2011 because the Sandusky and Curley-Schultz prelims were coming up in mid-Dec. McQueary had last testified a year before at the grand jury. They wanted to rehearse him and make sure he knew what to say, and what not to say.

  7. Keep going, guys. Remember Winston Churchill:

    Never give in - never, never, never, never - In nothing great or small, large or
    petty - never give in except to convictions of honor and good sense:

  8. Tim,
    Broaden your focus to the Spanier trial. That document would have to be part of the evidence because McQ was the key witness then it's all about his credibility.

    It is a fact that the AG and Freeh withheld evidence to make their cases, but Freeh would have never withheld this report if it existed.

    As to your earlier point about the AG reviewing the FreehReport, it is obvious that if they did, they didn't look very closely. Some of the exhibits in the Freeh Report were partially redacted when the AG put them in the conspiracy of silence resentment.

    Gregory is right. This police report is another
    hoax. At the most, there might be some notes that the police took from an interview that did not make it into an official report. That would explain why there was no police report submitted in discovery .

  9. Ray - You are arguing both sides. You claim the police report was withheld from discovery in two trials but that the document was a hoax. I would think that McQueary would have mentioned it in one of his many depositions. Maybe have to wait for his book to find out, which may be the point.

    Even if the prosecution did withhold that police report, it is doubtful that it would have affected the outcome of either trial. Sandusky's defense objected to McQueary's hearsay, and the judge quickly cut it off. I suspect Spanier's defense did the same.

    I think it is a real document. Whether McQueary was telling the truth is another matter given that he had read the grand jury presentment prior to claiming Paterno told him 2001 was the "second complaint."

    I still think the "second complaint" is exculpatory for Paterno because we know from Curley's testimony and email that he did tell Paterno in 1998 about the unfounded complaint. Ganim was too biased to realize it but McQueary's hearsay is evidence that the alleged complaints to Paterno in the 1970s are bogus because the first complaint was 1998.

    John Ziegler's latest theory is that Ganim released the story at this time to shore up her 1971 accuser story now that Bernie McCue just died. Ziegler thinks McCue got the 1971 accuser to make the bogus claim. With McCue dead, he thinks the 1971 accuser may eventually recant because he is a big Penn State fan. Not sure I buy that because the Attorney General could throw the book at him for fraud and false swearing.

    1. Tim,
      I am not arguing both sides. My point is that if this document exists, then it was withheld from discovery. However, the evidence where is heavily against its existence because it would have been such a valuable document for both Freeh and the AG.

      It appears to me that Sara does not have much confidence in all and her 1971 story because she didn't reference it as a prior incident. Most people with a thorough understanding of this case Know that the 1970 and 1980 era accusations are bogus.

      As for Mike's credibility, during his civil trial he testified that he never read the grand jury presentment and that he was defamed by Penn State's statement (not the presentment).

      Unbelievable, considering that he sent an email to the AG accusing them of twisting his words.

      That is perjury because it was a material false statement under oath.

    2. The only person to defame MM was Tom Corbett on National Television.

  10. I still don't see how you personally would know if this particular document was withheld from discovery unless you worked for the defense and saw every document.

    Maybe Sandusky's appeal lawyers are now pouring over the discovery documents looking for the police report Ganim mentioned.

    I agree McQueary is not credible but he isn't going to be charged with perjury unless he retracts his testimony that he believed he witnessed a sexual assault. I doubt he will ever do that because the Attorney General would charge him with perjury and fraud, and he would lose his $12 million judgement.

    The only way he might do it would be to become a federal whistle blower against the Attorney General's corrupt prosecutors. He could claim they threatened him to change his story and coached him on what to say. Maybe he knows of other illegal activities by prosecutors, such as leaking grand jury details to Ganim for her March, 2011 story. He already testified that a prosecutor told him they leaked the grand jury presentment, something they denied to the judge.