<p>I am going to go all legal here for a moment. I am not addressing the morality of anything, except somewhat. I think the rush to judgment here on the Penn State administrators is unwarranted, and I think the prosecutor’s conduct with respect to those men deserves a lot of criticism.</p>
<p>First of all, all of this talk about “the legally required minimum” is poppycock. Not because the law required more of these people, but because it required nothing at all of them. The failure to report “crime” – today, a class 3 misdemeanor, back then a summary offense, i.e., a traffic ticket – applies only to people who regularly care for children who observe or otherwise receive evidence of abuse to children in their care. The kid in this case – the only kid Messrs. Curley, Schultz, or McQuearey knew anything about – was not a kid in their care (as, for example, a 17-year-old Penn State football player might have been); he was a guest of a retired coach.</p>
<p>On top of that, the incident occurred 9 years ago. The statute of limitations for child abuse hasn’t expired – it lasts a really long time. But the statute of limitations for the failure to report summary offense in 2002? I haven’t researched it, but I don’t think it’s subject to the special child abuse statute.</p>
<p>In other words, the indictment of ANYONE – Curley, Schultz, McQueary, Paterno – for failing to report anything in this case in 2002 is (or would be) an unalloyed act of prosecutorial misconduct: charging an offense on which no conviction is possible solely to embarrass the accused.</p>
<p>I feel conflicted, because like everyone else I think the accused may have a lot to answer for, morally, and I kind of wish more people (Paterno, Spanier) were more embarrassed. But the Pennsylvania AG does not have the role of Satan in Job or the Kabbala – God’s prosecutor, demanding that each person pay for his ethical lapses and weaknesses. It’s his job to prosecute crimes, hopefully serious crimes, not to publicize sensational but non-criminal activity. And certainly not to use Grand Jury investigative powers to discover and to expose evidence of non-crimes. That’s not OK.</p>
<p>Now let’s talk about perjury, which IS a serious crime and is clearly not barred by the statute of limitations. (It might be barred as the result of a perjury trap, since the questions on which they allegedly perjured themselves were hardly relevant to any prosecutable crime.) </p>
<p>The only ground on which Curley and Schultz are accused of committing perjury is that they said McQueary did not tell them “anal penetration”, and McQueary said he did. They don’t dispute that he told them about inappropriate sexual conduct, and that they treated the report as such. If they had a duty to report anything – which I think they pretty clearly didn’t – it didn’t matter whether it was inappropriate touching or full-on sodomy. If they didn’t have a duty to report anything, making what they didn’t have to report actual anal penetration makes it several notches more horrifying and disgusting, but doesn’t magically create a legal obligation. So if they lied, they lied about something immaterial to anything, and that’s not perjury.</p>
<p>But did they lie? I can’t know, of course, but there are a whole bunch of things in this story that make me think maybe they didn’t lie. First – and this is actually important – all of us are outraged that no one reacted strongly enough to a 60-year-old man sodomizing a 10-year-old boy in a shower. But maybe no one reacted strongly enough to that, because no one thought that was was had happened. Remember, no victim has actually come forward here, and only one victim who has come forward has reported any actual attempt to penetrate him anally, so it’s not like there is any evidence that this was happening all the time. It seems possible to me that everyone reacted the way they did in 2002 – including McQueary, by the way – because they thought what they were dealing with was several quanta less horrifying than anal sex.</p>
<p>We only have McQueary’s word for it that there was anal sex, and that he told anyone about it. As far as the grand jury was concerned, it was clear that he didn’t tell Paterno there was anal sex – because Paterno obviously didn’t tell Curley that, and Paterno denied it to the grand jury and wasn’t charged with perjury. If we assume that McQueary DID see anal sex, or something like it, why is anyone so quick to believe that he was clear about it when he spoke with Curley and Schultz, when he wasn’t clear at all about it with Paterno? And isn’t it possible that at the time McQueary wasn’t as sure as he is today that what he saw was anal sex?</p>
<p>So – I think the AG dragged Curley and Schultz into this case on a very questionable basis. They committed no crime in 2002. As a matter of law (because the question was irrelevant) they didn’t commit perjury in 2011, and it’s entirely possible that they told the truth to the grand jury. Not only are they entitled to a presumption of innocence – of course they are – there’s a good chance that they actually ARE innocent. Of crimes, at least.</p>
<p>They aren’t innocent of bad judgment, of course. I wish they had done a lot more to stop Sandusky. I wish in 1998 the university police had followed up a bit more and realized they were looking at the tip of an iceberg of bad behavior rather than one incident that crossed the line, but barely. </p>
<p>But there’s a huge difference between that and thinking that all these men knew Sandusky was a sexual predator who would stop at nothing, and covered it up deliberately to protect the Penn State football program. I have a hard time believing that happened with one person, much less ALL of these people. The rush to public judgment here on the basis of out-and-out abuse of power by the prosecutor is very, very disturbing to me.</p>