Penn State Scandal: Reviewing the Grand Jury Report

Kelly Scaletta@@KellyScalettaFeatured ColumnistNovember 13, 2011

STATE COLLEGE, PA - NOVEMBER 11: Pennsylvania Governor Tom Corbett (C) looks on during Pennsylvania State University's Board of Trustees meeting in the wake of the Jerry Sandusky scandal on November 11, 2011 in State College, Pennsylvania. Penn State's interim president Rodney Erickson was introduced at the meeting. Head football coach Joe Paterno was fired amid allegations that former former Penn State defensive coordinator Jerry Sandusky was involved with child sex abuse.  (Photo by Mario Tama/Getty Images)
Mario Tama/Getty Images

There have been a number of responses and defenses of Joe Paterno which have been argued in my previous article and elsewhere. In that article I focused more on my experience and on the reactions to those who were defending Paterno more than on Paterno himself.

In the comments on that article it became clear to me that there was a lot of misunderstanding on the basic facts in regards to the contents of "what we know" and "what we don't know." 

This investigation did not start last week. It has been going on for years. There is a lot that we do know and, yes, a lot that we still don't. Having said that, the things we don't know are not likely to help Joe Paterno or Penn State if we learn the answers—they are likely to make things worse.

It became apparent to me that it was necessary to write an article reviewing the pertinent portion of the Grand Jury report, in the portion titled, Victim 2, found on pages 6-13. 

First, though, let's set out some basic things that shouldn't need to be said, but since some have tried to conflate issues, they need to be. Jerry Sandusky is the the criminal, the pedophile, the child rapist and the truly evil man in all of this. No one is making Joe Paterno the one who has to "shoulder all the blame," nor are they "trying to crucify him" or "make him the scapegoat." 

Joe Paterno's faults and responsibilities are far, far short of the things that Sandusky did. Sandusky being worse, or for that matter Mike McQueary being worse, does not excuse Paterno or mean he did nothing wrong. 

Mike McQueary was the actual eyewitness, and he failed to meet his obligations at his time. He bears his own burdens. The only logical reason I've heard that makes sense as to why he is not fired is that he's a key witness, and the prosecution needs him to stay employed for the case against Sandusky. 

Whether he is more, or less, at fault than Paterno is moot. By moot, I mean it by the definition of the word, i.e. it is an argument that is not settled and could be had, but is not needed to resolve in order to settle the issue at hand. It doesn't matter who was "more" at fault, because both were.

The fact is that there are plenty of articles which are faulting McQueary. There just aren't any defending him. There aren't any riots or demonstrations or vigils telling how McQueary doesn't deserve to be punished. 

The reason there might be more arguments that Paterno is wrong is that he is the only one anyone is defending in all of this and that should be cause enough to stop and pause. Those who support Paterno but blame McQueary should stop and ask themselves whether they are the ones who are being inconsistent. 

Quibbling over petty semantics in the face of the consequences of their inaction is pointless, and frankly, belittles the severity of the crimes that Sandusky was able to continue with because neither was willing to do what they needed to do. 

Sandusky was the criminal. Neither McQueary nor Paterno did enough. We'll have more on that later. 

It is helpful if those who would defend Paterno would actually read the Grand Jury report.

Here is the exact pertinent portion of the Grand Jury report. Read this with caution as the actual rape is described. The original report has longer paragraphs which I have broken up for easier reading, but the content is exactly the same. 

On March 1, 2002, a Penn State graduate assistant (“graduate assistant”) who was then 28 years old, entered the locker room at the Lasch Football Building on the University Park Campuson on Friday night before the beginning of Spring Break.

The graduate assistant, who was familiar with Sandusky, was going to put some newly purchased sneakers in his locker and get some recruiting tapes to watch. It was about 9:30 p.m.

As the graduate assistant entered the locker room doors, he was surprised to find the lights and showers on. He then heard rhythmic slapping sounds. He believed the sounds to be those of sexual activity. As the graduate assistant put the sneakers in his locker, he looked into the shower.

He saw a naked boy, Victim 2, whose age he estimated to be ten years old, with his hands up against the wall, being subjected to anal intercourse by a naked Sandusky. The graduate assistant was shocked but noticed that both Victim 2 and Sandusky saw him.

This is important to take notice of. This is what McQueary told the Grand Jury and that much we know for a fact, because that's what is in the Grand Jury report. There will be more on this later, but for now just put a pin in this. McQueary told the Grand Jury that he saw a boy being raped.  

The graduate assistant left immediately, distraught. The graduate assistant went to his office and called his father, reporting to him what he had seen. His father told the graduate assistant to leave the building and come to his home. The graduate assistant and his father decided that the graduate assistant had to promptly report what he had seen to Coach Joe Paterno (“Paterno”), head football coach of Penn State.

Yes, McQueary should have done more. There is absolutely no question about that. McQueary's inaction and Patrino's failings are mutually exclusive. Paterno is not responsible for what McQueary did not do. He is only responsible for what he did not do. 

Here is where Paterno comes into the story:

The next morning, a Saturday, the graduate assistant telephoned Paterno and went to Paterno's home where he reported what he had seen. Joseph V. Paterno testified to receiving the graduate assistants report at his home on a Saturday morning.

Paterno testified that the graduate assistant was very upset. Paterno called Tim Curley (“Curley"). Penn State State Athletic Director and Paterno's immediate superior, to his home the very next day, a Sunday. and reported to him that the graduate assistant had seen Jerry Sandusky in the Lasch Building showers fondling or doing something of a sexual nature to a young boy.

There are some very disconcerting things that come up here. First, why did Paterno wait a full day? I also find the language intriguing. The "very next day" makes it appear as though he didn't waste any time, but he did. He waited an entire day. 

It was March 2. It wasn't football season. It wasn't a game day. What did he do? Watch TV? He just found out a child had been raped, or at the very least "fondling or doing something of a sexual nature to a young boy" had occurred. 

Previously, in 1998, the police had investigated Sandusky on a similar matter and had been found to be having inappropriate contact (though not rape) with two separate boys, on two separate occasions. 

In the course of this investigation, according the Grand Jury report, there was actual taped conversation with one of the boy's mothers where Sandusky confesses to this. It is not in dispute as to whether this happened. 

Reports have come out since that these investigations indicate what may have been behind Sandusky's resignation at the end of that season. 

Are we to believe that Paterno, the man who had groomed Sandusky to take over and then told him he wouldn't, did not know the reason Sandusky was being asked to resign? It is implausible to me that he did not think of this four years later, when McQueary brought him the report. 

I have to wonder, why did he wait a day? I don't know. 

So many argue, "He told his boss, what else was he supposed to do?" There weren't only two choices here. There were a litany of them, most far better. 

He could have told McQueary, "Get in the car, we're going to fill out a police right now." He could have called Sandusky and asked him about it. He could have ensured that the child was safe. None of these things are extraordinary measures. They are basic things we'd like to think we'd do in a similar situation. 

Paterno made one phone call, the next day, attended one meeting at another time, and that's all we know of. Even in those talks it does not seem like his interest was justice; from the events that followed we can conclude that the interest was, instead, to protect the university. 

Let's also set aside another notion that, somehow, Tim Curley was his "boss." If he was, he only technically was. No one would suggest reasonably that Curley held more power at Penn State than Paterno. Remember, this is a man whom they had tried to fire five years earlier, only to have him say in response, "No, I'm not." 

Arguably no coach in all of college football held more power than Paterno did. This is not a mere case of passing something up the chain. 

Furthermore, this is not just some minor grievance. It was a child being raped. Why did he wait a day, and what else did he do knowing that? 

Only he knows, but I wonder also, why didn't the grand jury ask him? If you read the report, it seems that they were far harder on Tim Curley and Gary Schultz. Their testimonies were questioned, but it does not appear Paterno's was. 

I bring these things up because people will argue that there are things we don't know. I agree. Knowing what we don't know won't necessarily work out in Paterno's favor, though. Is it possible that the Grand Jury, awed by the person and history of Joe Paterno, was easier on him?

I don't think Paterno is evil, but I sure would like to know more specifics about what exactly McQueary told him. I would like to know what else he did that day. I'd like to know why he waited a full day before contacting Curley.  

Approximately one and a half weeks later, the graduate assistant was called to a meeting with Penn State Athletic Director Curley and Senior Vice President for Finance and Business Gary Schultz (“Schultz”). The graduate assistant reported to Curley and Schultz that he had witnessed what he believed to be Sandusky having anal sex with a boy in the Lasch Building showers.  

Curley and Schultz assured the graduate assistant that they would look into it and determine what further action they would take. Patemo was not present for this meeting.The graduate assistant heard back from Curley a couple of weeks later. He was told that Sandusky’s keys to the locker room were taken away and that the incident had been reported to The Second Mile.

The graduate assistant was never questioned by University Police and no other entity conducted an investigation until he testified in Grand Jury in December, 2010. The Grand Jury finds the graduate assistant’s testimony to be extremely credible.

To me, this is extremely disturbing. Curley waited a full week and a half before even talking to McQueary! Why did it take so long? Why didn't he call the same day or the next? 

Also, why wasn't Paterno following up? This is disturbing. Paterno, based on what is in the report, heard McQueary's testimony, called Curley the next day and never gave the child another thought. 

Those who want to defend Paterno need to realize this is what is so troublesome. His reaction was, by all accounts, borderline, if not complete indifference for the welfare of the child. 

His actions are entirely consistent with those of someone who is protecting the university and absent of someone who is protecting the child.

You also might be wondering why on earth Schultz was there. What does the Vice President for Business and Finance have to do with anything? Why is he there? Well, the answer is that among his responsibilities is oversight of the Campus Police. 

Some have mistaken this as "reporting it to the police." This is not reporting it to the police. It is telling it to an administrative bureaucrat who had the technical responsibility of overseeing the campus police. This is not a career cop or something. 

This is why when people defend his actions as those of "just a coach," they're being speciously short sighted. I don't give a hoot what his "legal" responsibilities are. His human responsibilities far exceed the minimum legal requirements. 

Also note that McQueary told the Grand Jury that he saw Sandusky raping the child. He said he told Curley the same thing and the jury found his testimony credible. 

Paterno said to Curley that McQueary had seen Sanduksy in the shower with the child "fondling or doing something of a sexual nature." 

Some have tried to argue that Paterno didn't know the full extent of it. But, according to Paterno, that's what he reported to Curley. So, let's just say he didn't understand the child was being raped in the shower. 

Is there a scenario you can think of where a man with a history of such things known to you, is in the shower, naked, with a child, "fondling or doing something a sexual nature" should not sound an alarm? This is what I mean; this is not the time for parsing. "Molestation light" is not on the table here. 

Paterno knew, by his own admission, that something extremely disturbing had occurred and literally did the least he could do without breaking the law. 

Having said that, McQueary has been consistent in telling everyone else that he saw a raping. Both Curley and Schultz have said they saw something more benign. I'll comment on some of that later. 

For now, just note that the Grand Jury believed McQueary but not the others. They were indicted for perjury, in fact. 

Curley testified that the graduate assistant reported to them that “inappropriate conduct” or activity that made him “uncomfortable” occurred in the Lasch Building shower in March 2002. Curley specifically denied that the graduate assistant reported anal sex or anything of a sexual nature whatsoever and termed the conduct as merely “horsing around.”

When asked whether the graduate assistant had reported “sexual conduct” “of any kind” by Sandusky, Curley answered, “No” twice. When asked if the graduate assistant had reported “anal sex between Jerry Sandusky and this child,” Curley testified, “Absolutely not.” Curley testified that he informed Dr. Jack Raykovitz, Executive Director of the Second Mile of the conduct reported to him and met with Sandusky to advise Sandusky that he was prohibited from bringing youth onto the Penn State campus from that point forward.

Curley testified that he met again with the graduate assistant and advised him that Sandusky had been directed not to use Penn State’s athletic facilities with young people and “the information" had been given to director of The Second Mile. Curley testified that he also advised Penn State University President Graham Spanier of the information he had received from the graduate assistant and the steps he had taken as a result.

Curley was not specific about the language he used in reporting the 2002 incident to Spanier. Spanier testified to his approval of the approach taken by Curley. Curley did not report the incident to the University Police, the police agency for the University Park campus or any other police agency.

Spanier is another name that took a hit, and deservedly so. He showed little curiosity and added his name to the list of those who failed to file a police report. 

I have also seen a number of people argue that this had been reported to the Campus Chief of Police, but that's not entirely accurate. There will be more on that later, but for now, it is sufficient to point to the fact that no police report was filed by McQueary, Paterno, Curley, Spanier or Schultz.

Schultz testified that he was called to a meeting with Joe Patemo and Tim Curley, in which Patemo reported “disturbing” and “inappropriate” conduct in the shower by Sandusky upon a young boy, as reported to him by a student or graduate student. Schultz was present in a subsequent meeting with Curley when the graduate assistant reported the incident in the shower involving Sandusky and a boy.

Schultz was very unsure about what he remembered the graduate assistant telling him and Curley about the shower incident. He testified that he had the impression that Sandusky might have inappropriately grabbed the young boy’s genitals while wrestling and agreed that such was inappropriate sexual conduct between a man and a boy.

While equivocating on the definition of “sexual” in the context of Sandusky wrestling with and grabbing the genitals of the boy, Schultz conceded that the report the graduate assistant made was of inappropriate sexual conduct by Sandusky.

However, Schultz testified that the allegations were “not that serious” and that he and Curley "had no indication that a crime had occurred." Schultz agreed that sodomy between Sandusky and a child would clearly be inappropriate sexual conduct. He denied having such conduct reported to him either by Patemo or the graduate assistant.

What happened in the meeting with Paterno, Curley and Schultz? Why is Schultz the only one who talks about it? How come the grand jury didn't inquire more about this part of things? It seems that this meeting is only slightly alluded to, but I am bewildered why it is so glossed over. 

One thing that is apparent, it was not determined to file a police report. 

I am also wondering how there can any definition of "wrestling" and "grabbing genitalia" with a naked grown man and a naked boy in the shower in any circumstance that could be considered anything other than "inappropriate" and "sexual in nature." 

Certainly, these things, even the softened version, are criminal and serious!

Schultz testified that he and Curley agreed that Sandusky was to be told not to bring any Second Mile children into the football building and he believed that he and Curley asked “the child protection agency” to look into the matter.

Schultz testified that he knew about an investigation of Sandusky that occurred in 1998, that the “child protection agency” had done, and he testified that he believed this same agency was investigating the 2002 report by the graduate assistant.

Schultz acknowledged that there were similarities between the 1998 and 2002 allegations, both of which involved minor boys in the football showers with Sandusky behaving in a sexually inappropriate manner.

Schultz testified that the 1998 incident was reviewed by the University Police and “the child protection agency” with the blessing of then-University counsel Wendell Courtney. Courtney was then and remains counsel for The  Second Mile. Schultz confirmed that University President Graham Spanier was apprised in 2002 that a report of an incident involving Sandusky and a child in the showers on campus had been reported by an employee.

Schultz testified that Spanier approved the decision to ban Sandusky from bringing children into the football locker room and the decision to advise The Second Mile of the 2002 incident. Although Schultz oversaw the University Police as part of his position, he never reported the 2002 incident to the University Police or other police agency, never sought or reviewed apolice report on the 1998 incident and never attempted to leam the identity of the child in the shower in 2002. No one from the University did so. Schultz did not ask the graduate assistant for specifics. No one ever did.

Schultz expressed surprise upon learning that the 1998 investigation by University Police produced a lengthy police report. Schultz said there was never any discussion between himself and Curley about turning the 2002 incident over to any police agency.

Schultz retired in June 2009 but currently holds the same position as a senior vice president with Penn State, on an interim basis. Graham Spanier testified about his extensive responsibilities as President of Penn State and his educational background in sociology and marriage and family counseling.

He confirmed Curley and Schultz’s respective positions of authority with the University. He testified that Curley and Schultz came to him in 2002 to report an incident with Jerry Sandusky that made a member of Curley‘s staff “uncomfortable.” Spanier described it as “Jerry Sandusky in the football building locker area in the shower with a younger child and that they were horsing around in the shower.”

Schultz's testimony is very striking in that it states, "Although Schultz oversaw the University Police as part of his position, he never reported the 2002 incident to the University Police or other police agency, never sought or reviewed a police report on the 1998 incident and never attempted to learn the identity of the child in the shower in 2002. No one from the University did so. Schultz did not ask the graduate assistant for specifics. No one ever did."

So even if you wanted to argue that I'm being "judgmental" or something in my assessment of Schultz as something other than a "real cop," it is evident he never acted in any police capacity. Schultz, just like Curley and Patrino, acted to protect the university, not the child. 

Spanier testified that even in April, 2011, he did not know the identity of the staff member who had reported the behavior. Spanier denied that it was reported to him as an incident that was sexual in nature and acknowledged that Curley and Schultz had not indicated any plan to report the matter to any law enforcement authority, the Commonwealth of Pennsylvania Department of Public Welfare or any appropriate county child protective services agency. Spanier also denied being aware of a 1998 University Police investigation of Sandusky for incidents with children in football building showers.

Department of Public Welfare and Children and Youth Services local and state records were subpoenaed by the Grand Jury; University Police records were also subpoenaed. The records reveal that the 2002 incident was never reported to any officials, in contravention of Pennsylvania law.

Once again, the matter was failed to be reported. 

Sandusky holds emeritus status (a title of privilege that entitles the bearer to have continued access to University facilities and to have an office on campus, if one is available) with Penn State.

ln addition to the regular privileges of a professor emeritus, he had an office and a telephone in the Lasch Building. The status allowed him access to all recreational facilities, a parking pass for a vehicle, access to a Penn State account for the Internet, listing in the faculty directory, faculty discounts at the bookstore and educational privileges for himself and eligible dependents.

These and other privileges were negotiated when Sandusky retired in 1999. Sandusky continued to use University facilities as per his retirement agreement. As a retired coach, Sandusky had unlimited access to the football facilities, including the locker rooms. Schultz testified that Sandusky retired when Patemo felt it was time to make a coaching change and also to take advantage of an enhanced retirement benefit under Sandusky’s state pension.

Both the graduate assistant and Curley testified that Sandusky himself was not banned from any Penn State buildings and Curley admitted that the ban on bringing children to the campus was unenforceable.The Grand Jury finds that portions of the testimony of Tim Curley and Gary Schultz are not credible. 

In other words, they didn't slap Sandusky on the wrist with a wet noodle; essentially, they just told him to go home and slap himself on the wrist with a wet noodle. 

The Grand Jury concludes that the sexual assault of a minor male in 2002 should have been reported to the Pennsylvania Department of Public Welfare and/or a law enforcement agency such as the University Police or the Pennsylvania State Police.

The University, by its senior staff, Gary Schultz, Senior Vice President for Finance and Business and Tim Curley, Athletic Director, was notified by two different Penn State employees of the alleged sexual exploitation of that youth. Pennsylvania’s mandatory reporting statute for suspected child abuses located at 23 Pa.C.S. §63l1 (Child Protective Services Law) and provides that when a staff member reports abuse, pursuant to statute.

The person in charge of the school or institution has the responsibility and legal obligation to report or cause such a report to be made by telephone and in writing within 48 hours to the Department of Public Welfare of the Commonwealth of Pennsylvania. An oral report should have been made to Centre County Children and Youth Services but none was made. Nor was there any attempt to investigate, to identify Victim 2 or to protect that child or any others from similar conduct, except as related to preventing its re-occurrence on University property.

The failure to report is a violation of the law which was graded a summary offense in 2002, pursuant to 23 Pa.C.S. §63l9.2. The Grand Jury finds that Tim Curley made a materially false statement under oath in an official proceeding on January 12, 2011, when he testified before the Statewide Investigating Grand Jury, relating to the 2002 incident, that he was not told by the graduate assistant that Sandusky was engaged in sexual conduct or anal sex with a boy in the Lasch Building showers.

Furthermore, the Grand jury finds that Gary Schultz made a materially false statement under oath in an official proceeding on January 12, 2011, when he testified before the 30 Statewide Investigating Grand Jury, relating to the 2002 incident that the allegations were, "not that serious" and that he and Curley "had no indication that crime had occurred."

Everything points to one conclusion, that Penn State and all the authorities from McQueary on up acted in a way which is more consistent with protecting the University than protecting the child. 

I do not contend that Paterno is criminally responsible. There has been nothing yet to indicate he was. It is possible that the reason he was not pressed to the same degree as Scultz and Curley is that he was not under the same legal obligation to report the rape to the police. 

However, it certainly doesn't make him any more humane. Regardless of what the law said, the law in our hearts tells us that in this case you call the police when you learn a child is raped. Certainly, Paterno broke that law. 

I'd also like to point out that this was not a "mistake" in my mind. A mistake to me is when you intended do another thing. I make mistakes all the time. 

It was not a lapse in judgement, either. He weighted his options and made a decision. He did not do something off the cuff. This isn't a tweet he shouldn't have tweeted. It wasn't a spur of the moment decision. 

No, let's not make light of what Paterno did because of who he is any more than we should make more of what he did because of who he is. He made a calculated decision, after sitting on it for a full day, to call his AD instead of the police!!! That's not a mistake. That's a decision to do the wrong thing.

It is most appalling to me that five different adult figures, all related to academics or team sports, who knew this child had been raped, never filled out a police report. Each and every one of them deserves to fired. 


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