McQueary's credibility expected to shape trial involving PSU administrators

Penn State assistant football coach Mike McQueary watches as the team warms up on Oct. 29, 2011, before a game in Beaver Stadium in State College.
Penn State assistant football coach Mike McQueary watches as the team warms up on Oct. 29, 2011, before a game in Beaver Stadium in State College.
Photo by AP
| Sunday, Nov. 3, 2013, 10:30 p.m.

Mike McQueary typically didn't walk away.

Not when a star quarterback under his guidance endured ridicule for losing football seasons at Penn State University. Not when his high school sociology teacher teased him about his red hair.

“I would warm my hands above his head,” said Joseph Boris, 64, who retired this year from State College Area High School. “He could take a joke. He was an upstanding guy.”

Why McQueary, 39, delayed reporting that he witnessed pedophile Jerry Sandusky, 69, violate a young boy will reignite questions about McQueary's credibility when three former Penn State administrators go to trial for an alleged cover-up, legal analysts say. Monday marks the second anniversary of Sandusky's indictment and about 16 months since his conviction in Centre County. The administrators' trial, expected next year, isn't scheduled.

“If the jury believes McQueary's story, then the focus of the trial becomes, ‘What did these three people do next?' ” said John Burkoff, a University of Pittsburgh law professor. “If jurors don't believe his story, there's more to the trial.”

McQueary declined to comment. His attorneys did not respond to messages regarding the Dauphin County case against former Penn State president Graham Spanier, vice president Gary Schultz and athletic director Tim Curley. The men dispute committing perjury, conspiracy and child endangerment charges.

State prosecutors allege they concealed concerns about Sandusky and effectively enabled his abuse long after McQueary says he sounded alarms in February 2001.

Fallout from the scandal keeps rattling Penn State, which last week confirmed nearly $60 million in settlement payments to 26 men who claim abuse.

Attorneys for some victims say Spanier, Schultz and Curley failed to protect boys who believed in the school and in Sandusky, a retired football defensive coordinator. State prosecutors wouldn't have the pending case if not for McQueary, legal observer Wes Oliver said.

“It all turns on what McQueary told” Curley, Schultz and Spanier, said Oliver, Duquesne University's criminal justice program director. “What the jury factually thinks occurred turns on Mike McQueary.”

Straightforward, or embellished?

Teachers and coaches trusted McQueary as he grew up and played high school football in the shadow of Penn State.

Boris, who taught McQueary during the early 1990s, called him a jock who kept away from trouble: “I'd recommend him if he asked for a recommendation.”

McQueary enrolled at Penn State and became a quarterback on the late Joe Paterno's team. He set a school record for passing — 366 yards in a 1997 game against Pitt — before graduating to a brief National Football League stint.

Penn State drew him back in 2000, and he became the team's graduate assistant and recruiting coordinator. He was an assistant coach when the school did not renew his contract in 2012 — a dismissal McQueary disputes in a whistleblower lawsuit.

“As a coach, he always told you where you stood. He was always straightforward,” said former quarterback Zack Mills, 31, of Frederick, Md.

Not everyone sees steady virtue in McQueary, known around State College as “Big Red.” Defense lawyers accuse him of embellishing his testimony. Spanier's attorney Elizabeth Ainslie suggested during a July hearing that McQueary was “making it up as he goes along.”

“I don't believe a word he says,” Ainslie told the Trib afterward. She found it questionable that McQueary apparently waited for police to contact him when he heard rumors of a Sandusky investigation years after the shower incident, she said.

“Maybe they could create an impression that he has an interest in testifying this way to shift blame from himself,” said former prosecutor Christopher Mallios, an attorney adviser at the AEquitas anti-violence group in Washington. “What exactly he told his superiors, I think, remains something that hasn't been consistent.”

Failing to meet ‘a moral obligation'

A grand jury report released upon Sandusky's arrest revealed that McQueary reported a young boy's sexual assault in a football shower facility a decade earlier.

Though the presentment suggests McQueary saw an anal rape, McQueary later testified he did not directly observe that. He said he heard rhythmic slapping and saw a naked Sandusky closely positioned with a boy, concluding it was a sexual act.

Such apparent shifts in reports will help defense attorneys question his credibility and ask why he didn't immediately call police or intervene, legal analysts said.

“I don't think anyone will say this guy is a lying scoundrel,” Oliver said. “The question is, ‘How sure were you about what you saw?' If you weren't sure enough to act on it at the time, and you then had to go to university administrators, explain what you saw, explain that you did nothing and didn't even think to pick up a phone and call police, I think there will be real questions.”

Gov. Tom Corbett, the former state attorney general, said McQueary failed to meet “a moral obligation.” McQueary told Paterno about the incident the following day and spoke with Curley and Schultz within about 10 days, court testimony shows. Jurors found Sandusky guilty of the shower assault but acquitted him of a more serious charge in that incident.

Possible reasons for discrepancies

Oliver and other analysts point to additional variations in McQueary's statements and tone. In court, he misremembered the year and month of the shower incident. Curley, Schultz and Spanier indicated through attorneys that McQueary never portrayed the matter as anything so severe.

“He has acknowledged that he should have done more. When he testified, he was apologetic. I think that helps his credibility,” said Michael McCann, a professor at the University of New Hampshire School of Law.

Prosecutors might say human nature and the effects of time explain differences in McQueary's stories and his delayed action, Mallios said. He pointed out that Schultz oversaw the university police force.

“Most people don't know how to react when they see child sexual abuse,” Mallios said. “We like to think we would immediately call police. Rationally, we know that's the right thing to do, but in most cases I've seen, that does not happen.”

Freelance reporter Anna Orso contributed to this report. Adam Smeltz is a Trib Total Media staff writer.

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