Published November 20, 2014
Joe Paterno would no doubt have made a dramatic courtroom witness. But legal experts said his death will have little or no effect on the criminal or civil cases to come out of the Penn State child sex-abuse scandal.
"Obviously, you're taking away a great deal of the high-profile nature of this case, because it deals with Joe Paterno's football program," said Jeffrey Lindy, a criminal defense lawyer involved in a clergy-abuse case in Philadelphia. "But with regard to the legal impact of his death, there is none."
Paterno died Sunday at 85, two months after former coaching assistant Jerry Sandusky was charged with molesting boys and two university officials were accused of perjury and failing to report child sex-abuse allegations against Sandusky to police.
The criminal case against the two university officials may even become more streamlined without Paterno in the mix.
Former university vice president Gary Schultz and athletic director Tim Curley are charged with failing to report to police what graduate assistant Mike McQueary said he told them in 2002: that McQueary saw Sandusky sexually assaulting a boy in a locker room shower.
McQueary first told Paterno, who said he reported it to Curley and Schultz the next day. The administrators told the grand jury they were never informed that the allegations were sexual in nature.
With Paterno's death, though, a jury is free to focus not on what Paterno knew or did, but on the defendants' actions.
What McQueary told Paterno "was a distraction, and now that that part of the case is really gone, it will focus much more on his interaction not with Paterno, but with the Penn State officials," said Duquesne University law professor Nicholas P. Cafardi.
McQueary is also the more crucial witness in the case against Sandusky, who is charged with abusing 10 boys, at least two of them on the Penn State campus.
Paterno testified for just seven minutes last January before the grand jury. He gave only vague answers — and was never pressed — when asked what he knew about anyone accusing Sandusky of molesting boys.
"Without getting into any graphic detail, what did Mr. McQueary tell you he had seen and where?" Paterno was asked, according to the grand jury testimony read in court last month.
"Well, he had seen a person, an older — not an older, but a mature person who was fondling, whatever you might call it — I'm not sure what the term would be — a young boy," Paterno replied.
He was asked if he ever heard of any other allegations against Sandusky, who had been the subject of a lengthy campus police investigation four years earlier after a mother complained Sandusky had showered with her young son at the football complex.
"I do not know of anything else that Jerry would be involved in of that nature, no. I do not know of it," Paterno said, adding, "You did mention — I think you said something about a rumor. It may have been discussed in my presence, something else about somebody. I don't know."
Paterno's grand jury testimony cannot be used in court, because the defense never had the chance to cross-examine him.
"His passing deprives folks from finding out, directly from his lips, exactly what he knew and when he knew it, and what he did or didn't do. But the reality is, sometimes those things can be proved by other means," said Jeff Anderson, the St. Paul, Minn., lawyer who filed the first civil case against Penn State on behalf of a Sandusky accuser.
It's not unusual for a witness to die or become infirm before trial, especially in child sex-abuse cases, which can take years or even decades to surface. In Philadelphia, prosecutors won the right to question 88-year-old retired Cardinal Anthony Bevilacqua on video last year to preserve his testimony before the spring trial of three priests and a church official. Bevilacqua suffers from dementia and cancer.
Prosecutors never got the chance to preserve Paterno's testimony, given his surprise cancer diagnosis and rapid decline after they filed the charges Nov. 4.