Clemente gets it: No one remembers exactly what was said.

Career FBI profiler, Jim Clemente, got it right.  Specific words from a conversation from ten or twelve or fourteen years after the event should not be used as evidence for a criminal investigation.

By
Ray Blehar

During Jim Clemente's interview on "Media Mayhem with Allison Hope Weiner, he makes a very sound observation regarding the testimony of Joe Paterno:

"But they show that after ten years or twelve years or thirteen years, you can't remember specific words that you used in a conversation.  And it's irresponsible for somebody to quote somebody ten years or twelve years after the event and say those are the specific words they used in a specific conversation.  That is absolutely not done it's - it's not proper in a criminal investigation at all."

Just prior to Clement's statement, host Allison Hope Weiner correctly stated that "Paterno could have benefited from better counsel."

Paterno's statements

Everyone focuses on Paterno's statements to the grand jury that McQueary told him it was "fondling" or "something of a sexual nature" as if those were the exact words McQueary used.  That is purely folly, as Clemente points out.  It is Paterno trying to recall a conversation from ten years prior.

However, it is relevant to point out that Paterno said McQueary provided no details during an interview just prior to him testifying at the grand jury.   Here is a summary of Paterno's interview (Exhibit E-1) with the police and personnel from the Attorney General's office.

So, just moments before Paterno is called to testify he states that McQueary didn't give him specific details and moments later, he conjures up a few details that are construed to be the exact words McQueary used.  And those exact words were never verified completely by McQueary -- who has his own memory issues.

McQueary, under cross examination at the preliminary perjury hearing was asked:

Roberto: Did you say extremely sexual in nature?
McQueary: In nature?
Roberto. Yes.
McQueary: I can't remember if I used the word in nature or not, ma'am.  I don't know that.

If McQueary can't remember what he said, and he is approximately 50 years younger than Joe Paterno, it strains credulity that Paterno could remember exactly what was said ten years ago.  Yet, the media and most of the public believes that McQueary said "of a sexual nature" to Joe Paterno.

Again, it is beyond reasonable for anyone to remember the exact words from a conversation occurring ten years earlier.

But to file perjury charges based on an "impression" is even worse.  And that's the case of Gary Schultz.

Schultz Grand Jury Testimony

One should view Schultz's testimony in the context of Schultz assuming he was not the subject of the investigation and trying to be helpful to the state (as was Paterno).  These men were not trying to hide anything.

Schultz's testimony is somewhat similar to Paterno's because he is simply adding information about what he thinks might have happened in the shower, not what McQueary told him about what happened.  Schultz even goes a far as to qualify the statement that McQueary did not tell him the information.  It was an "impression" of the incident that Schultz had -- not the actual report from McQueary.

Obviously, Schultz too, could have benefited from better counsel.

What does his impression of the incident have to do with what McQueary told him?  Moreover, how can an impression be the basis for a perjury charge?

Yet the media has run with this impression as the "report" that Schultz received from McQueary when the transcripts from the grand jury prove that it was certainly not the case.

Tim Curley's Grand Jury Testimony

Tim Curley often qualified what his testimony with the phrase, "I can't remember specifically" or "My recollection was." This certainly indicates that his testimony is not an exact memory of what was said.
Here was his statement about what McQueary told him.

"My recollection was that they were kind of wrestling, there was body contact, and they were horsing around."

As posted here, the Commonwealth made an attempt to rebut this statement through John McQueary's testimony that Mike was not familiar with the term "horsing around" and never would have used that term.  It's a ridiculous argument.

But what is more ridiculous is the AG charging these men for perjury over what is essentially having normal memories (or in the case of Schultz, a pretty bad memory).

The Media

And the media is equally guilty of holding these men to a ridiculously high standard for remembering a ten year old conversation, as well as not performing due diligence in reviewing the transcripts to understand exactly what was said.

Here's an excerpt from a Pulitzer Prize winning story by Sara Ganim.

According to the grand jury, then, here is how McQueary’s eyewitness account became watered down at each stage:
    
McQueary: anal rape.
Paterno: something of a sexual nature.
Schultz: inappropriately grabbing of the young boy’s genitals.
Curley: inappropriate conduct or horsing around.
Spanier: conduct that made someone uncomfortable.
Raykovitz: a ban on bringing kids to the locker room.

Of course, we all now know McQueary never reported an "anal rape."

We also know that McQueary could not recall using the term "in nature" when he spoke with Paterno and that Paterno stated that Mike didn't provide any details.

We also know that Schultz qualified his testimony that McQueary did not tell him about grabbing the boy's genitals and that it was an "impression" that Schultz had.

Curley indeed used the term "horsing around," but the McQueary's say Mike didn't know what that meant.

Spanier essentially reported what Curley told him -- it was "horsing around."

Curley told Raykovitz it was also "horsing around" and not just a ban on Sandusky bringing children into the showers.

Sara Ganim's reports on this scandal have been laden with factual errors and have been extremely biased against PSU officials.  Her incorrect account of the testimony of these men remains of the PN web-site, uncorrected, yet for over a year she's known McQueary never reported an anal rape.

Her performance as a journalist was so poor that I have decided to write a report on just how many facts this Pulitzer Prize winner got wrong and how many times she did not pursue leads that she uncovered in her stories.

Conclusion

It is folly to use the grand jury testimony of these men for bringing perjury charges or to impugn their character.  Pennsylvania is only one of two states (Connecticut is the other) that still use presentments.

I think the answer why is obvious.