A national audience eager to hear in Mike McQuearys own words what he saw in a Penn State locker room shower in 2002 didnt get that opportunity when Jerry Sandusky waived his right to a preliminary hearing Tuesday.
But that testimony may come Friday during a preliminary hearing for Penn State administrators Tim Curley and Gary Schultz in Harrisburg.
Experts said its likely that McQueary will take the stand as the main witness in their perjury and failure-to-report-abuse case, which is centered on the 2002 shower incident, the most striking allegation from the grand jurys presentment. A grand jury concluded the men lied about their knowledge of Sanduskys alleged rape of the boy in the shower in 2002.
Pittsburgh attorneys for Curley and Schultz, Caroline Roberto and Tom Farrell, said their clients are innocent.
Mr. Curley and Mr. Schultz look forward to the preliminary hearing to start the process of clearing their good names and demonstrating that they testified truthfully to the grand jury, Roberto and Farrell said in a statement this week.
Prosecutors expect the separate preliminary hearings for Curley, 57, and Schultz, 62, to be consolidated into a single hearing that is scheduled to start at 9 a.m. and last for a few hours. Although the court has banned transmissions via the Internet while court is in session, news organizations have petitioned to allow real-time reports.
The prosecutions burden of proof is low for a preliminary hearing. A judge, who must assume the evidence presented is true, determines if theres enough evidence to allege a crime was committed and bind over the case for trial. District Judge William C. Wenner will preside over Curley and Schultzs hearings.
For the perjury charge, prosecutors will have to have two witnesses corroborate what
the prosecution is alleging that Curley and Schultz lied under oath. That could come by live testimony or, in this case, prosecutors could have a witnesss previous grand jury testimony read as evidence. That could point to McQueary testifying. Its possible that Joe Paterno, whos been reportedly in poor health, could testify, but its also possible that someone would simply read his grand jury testimony.
For Curley and Schultz, the perjury charge is a felony and punishable up to seven years in prison. The failure to report abuse charge is a summary offense punishable by up to 90 days in jail.
Joe Amendola, the attorney for Sandusky, Tuesday morning praised Curley, Schultz and Paterno but lambasted McQueary. Curley, Schultz and Paterno are very good people, though not personal friends of his, he said.
He excoriated McQueary and his account of the 2002 shower incident during an impromptu news conference Tuesday held in front of the Centre County Courthouse after Sandusky unexpectedly waived his preliminary hearing at the last minute.
He suggested that the grand jurys conclusion that Mike Mc- Queary told Paterno, Curley and Schultz that he saw Sandusky raping a young child in the shower and that their only response was to tell Sandusky not to bring children from his Second Mile charity on campus doesnt make sense.
McQuearys original testimony to the grand jury, according to the presentment, was that he went into the Lasch Building on a Friday night in March 2002 and heard what he thought to be sex sounds. McQueary told the grand jury he saw Sandusky performing a sexual act on a young boy, left distraught and went to the house of his father, John McQueary, to tell him about he saw.
The presentment said McQueary told head football coach Joe Paterno about the incident the next day, but it doesnt say how McQueary characterized the incident to Paterno. The day after that, Paterno told Curley of McQuearys report. About a week and a half later, McQueary told Curley and Schultz what hed seen, the grand jury found.
But Curley and Schultz told the grand jury McQueary didnt tell them the acts he witnessed were sexual in nature. The grand jury found Mc- Quearys testimony more credible.
But in recent weeks, there have been reports that McQueary has told versions describing what he saw in the shower that are inconsistent with his grand jury testimony.
For instance McQueary, in an email to a friend, wrote that he stopped the alleged sex act and told police about it. Penn State and State College police both said they never received such a report.
On Sunday, The (Harrisburg) Patriot-News reported that McQueary told a family friend, Dr. Jonathan Dranov, a different story. The Patriot-News cited a source who said that Dranov testified to the grand jury that McQueary didnt tell him a sexual act had occurred.
Art Donato, a Philadelphia-area attorney who knows both Roberto and Farrell, said the attorneys wont be allowed to challenge McQuearys credibility during the preliminary hearing and wont be able to refer to those reports of inconsistencies.
However, Widener University associate law professor Jules Epstein said attorneys can maneuver around that a bit.
A lawyer might be able to ask some questions and learn some things that would be useful in credibility determinations at trial, he said. On average ... good lawyers would try and do that."
It would be up to the judge to rule on an objection from prosecutors looking to have that line of questioning stopped.
Some judges give a little more leeway than others, Epstein said.
Jonathan Hugg, a partner at Thorp Reed and Armstrong, said the preliminary hearing is an opportunity to learn more about the prosecutions case.
I think that the principal advantage is that its an opportunity to obtain discovery, and a secondary benefit is that you may actually be able to knock some of the charges out, Hugg said.
While prosecutors burden of proof for the preliminary hearing is relatively low, that will change when the case goes to trial. Perjury, said Hugg, is not an easy charge to prove.
Prosecutors, he said, have to prove beyond a reasonable doubt that a person intended to lie and did lie. Thats not easy. The typical situation where a prosecutor can prove that involves somebody frankly lacking the judgment to invoke the Fifth [Amendment].
Hugg said he thinks Curley and Schultz should have taken advantage of their right to not incriminate themselves and invoked the Fifth Amendment when they went before the grand jury.
When called before a grand jury, your first loyalty ought to be to yourself, not to your employer, Hugg said, adding that could might include loyalty to family. If these people thought they were protecting an institution or co-worker or anybody else, I think they are probably rethinking that right now.
Anne Danahy contributed to this report.
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