Ronald A. Smith and Terry Engelder: Jerry Sandusky should be retried

Ten years ago, Joe Paterno, the Brooklyn-born winningest football coach at Penn State University, was fired at night over the telephone, five days after the Pennsylvania attorney general’s office released the presentment charging defensive coach Jerry Sandusky and Penn State administrators with crimes of child abuse. Paterno was never found guilty of any crime, but three administrators and Sandusky spent time in prison.

While Paterno is the best remembered individual associated with the Sandusky scandal, there are three other Penn State administrators who have spent time in prison, and Sandusky himself, who has remained behind bars for 10 years. For nearly a year, we have been studying what happened to Sandusky and President Graham Spanier, Vice President Gary Schultz, Athletic Director Tim Curley and Paterno.

We want due process and justice for the quintet. With no particular ax to grind, except for fairness and legal justice, we have come to the conclusion that there should be a retrial of the Sandusky case.

Guilty or not, there is no question that due process was not accorded to Sandusky or to the administrators.

First, Pennsylvania Senior Deputy Attorney General Jonelle Eshbach wrote a misleading presentment which charged Sandusky with abuse of a boy in a Penn State athletic shower room. Mike McQueary, the assistant coach who became the whistleblower, never testified that he saw a boy “being subject to anal intercourse by a naked Sandusky.” Yet the statement appeared in attorney Eshbach’s presentment, Pennsylvania’s “indictment” of Sandusky and the administrators. This statement alone helped move a jury to a rush to judgment. McQueary attempted to correct the record, but Eshbach demurred.

Second, Pennsylvania Chief Deputy Attorney General Frank Fina eventually had his law license revoked for unethical behavior during the grand jury hearings. The Pennsylvania Supreme Court judged that Fina was “someone who cannot or will not separate right from wrong,” and Fina made no attempt to correct the false statement of Eshbach.

Third, former Pennsylvania Supreme Court Justice Cynthia Baldwin misrepresented Penn State administrators before the Sandusky grand jury. The Supreme Court charged Baldwin with conduct “prejudicial to the administration of justice.”

Fourth, and possibly most important, not one of the “abused” boys spoke of being sexually abused when first interviewed. However, the controversial and scientifically rejected theory of repressed memory used by the interviewers was hammered into the minds of the “victims” after being badgered, coaxed and cajoled for months before agreeing with the authorities that there was sexual abuse. Statements of the discredited “recovered memory” had a profound impact upon the outcome of the Sandusky trial.

The combination of the false narrative in the presentment, illegal activity of the Pennsylvania attorney general’s office, administrator misrepresentation and the problematic use of repressed memory led to media sensationalism and likely influenced the jury that was not aware of the questionable actions. It led to an essential death penalty for Sandusky and the tainting of four Penn State administrators, including the damaged legacy of a famed coach.

The irregularities are enough to justify a retrial for Sandusky.

Ronald Smith is an emeritus professor of kinesiology at Penn State and author of two books about the Sandusky scandal. Terry Engelder is an emeritus professor of geoscience at Penn State. His interest in the Sandusky case stems from his doubts about claims of repressed memories mainly because he survived the trauma of a pedophile as an adolescent while retaining a vivid memory of the affair.