Date of shower incident flubbed in Sandusky case
By Debra Erdley
Published: Monday, May 7, 2012, 10:06 p.m.
Updated: Tuesday, May 8, 2012
Prosecutors in the Jerry Sandusky child sex abuse case said on Monday that they erred by more than a year on the date of the alleged Penn State shower room incident that led to cover-up charges against a pair of university administrators and the dismissals of head football coach Joe Paterno and president Graham Spanier.
Defense attorneys for the administrators contend that the error means the statute of limitations has expired on one of the counts against their clients and that the count will be dismissed.
The motion, which Chief Deputy Attorney General Frank Fina filed in Centre County Court, conceded that Sandusky's alleged sexual abuse of a boy known as "Victim 2" in a deserted Penn State locker room shower in the Lasch Football Building occurred on or around Feb. 9, 2001, not March 1, 2002.
Fina's motion asking the court to amend the charges said the prosecution had "specific and authenticated findings" to verify the 2001 date as part of its ongoing investigation. Court documents indicate prosecutors don't know the boy's identity.
Attorneys for Sandusky and the prosecution declined to comment on the motion, citing trial Judge John M. Cleland's order restraining their comments as Sandusky's June 5 trial date nears.
The filing yesterday occurred months after Sandusky's lawyer, Joe Amendola, questioned the prosecution's charges involving Victim 2, saying the incident allegedly witnessed by then-graduate assistant Mike McQueary was not a sexual assault and occurred a year earlier.
In a March 25 story, The Associated Press reported that Amendola said a young man had come forward saying that he might be Victim 2 and that Sandusky had not abused him, but the young man obtained a lawyer and cut off contact. Sandusky told Amendola he knew that young man but was steadfast the date was in 2001, his attorney said then.
Sandusky, 68, a retired Penn State football defensive coordinator, faces 52 counts of alleged sexual abuse of 10 boys over a 15-year period. He maintains his innocence on all charges.
The filing is the latest wrinkle in the case that grew out of a lengthy grand jury investigation.
Last week, Amendola filed papers suggesting he believes prosecutors have interviewed at least seven more boys with allegations against Sandusky and filed a motion seeking their identities as well as those of any other youths who have made allegations against Sandusky to prosecutors.
Some of the most explosive testimony against Sandusky to date came from McQueary.
McQueary's account of the evening he said he saw a nude Sandusky up against a naked 10-year-old boy in a deserted Penn State locker room shower, and the university's reaction to his report, led to the Sandusky charges and charges of a criminal cover-up against Penn State athletic director Tim Curley and retired vice president of finance Gary Schultz.
The two are awaiting trial on charges of perjury and failure to report allegations of abuse after McQueary's reports to them.
"...The Commonwealth charged this case before it knew the facts," according to a statement issued last night by Curley's defense attorney, Caroline M. Roberto, and Schultz's defense attorney, Tom Farrell, both of Pittsburgh.
"Now, it is clear that Mike McQueary was wrong in so adamantly insisting that the incident happened the Friday before Spring Break in 2002.
"Whether or not Mr. McQueary's insistence was the result of faulty memory, or questionable credibility, there is no dispute that the statute of limitations has expired on Count Two and it will be dismissed," the statement concludes.
Count two is the failure to report allegations of abuse.
McQueary could not be reached for comment.
Legal experts who spoke to the Tribune-Review agreed the development could be good news for Curley and Schultz but were split as to the impact it will have on the criminal case against Sandusky.
University of Pittsburgh law professor John M. Burkoff said the date change won't necessarily derail the case against Sandusky.
"It is not a stake through the heart for the prosecution, but it certainly is a stumbling block for them. The truth is the change in date doesn't affect the Sandusky prosecution, but it may be the coup de gras for the Curley-Schultz case," he said.
Robert Del Greco, a prominent Pittsburgh defense attorney, predicted the filing would send ripples through the state's cases.
McQueary is the only adult who has testified he saw Sandusky in a compromising position with a child.
"Anytime a commonwealth witness, particularly a significant commonwealth witness, is mistaken in a substantial way, including the timing of the matter, it calls into question his credibility," Del Greco said.
He said it would be one thing for a juvenile witness in the Sandusky case to get a date wrong, but for an adult to be 13 months off would play into Roberto's call to dismiss perjury charges against Curley.
"This is going to be a major matter in the commonwealth's case," Del Greco said. "This could catastrophically affect the credibility of an adult witness."
Amendola announced yesterday that Sandusky will not attend a hearing on Wednesday in Centre County Court in Bellefonte, where Cleland is expected to consider motions over subpoenas filed by the defense to obtain information from third parties that it contends the prosecution has failed to provide.
The state Public Welfare, Corrections, and Labor and Industry departments filed motions asking Cleland to seal their motions to have the subpoenas thrown out because their responses might identify the victims.
Their motions to reject Amendola's subpoenas join those previously filed by Juniata College over a volunteer coaching position Sandusky applied for, three school districts attended by some of the victims, and two child welfare agencies.
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