Published November 20, 2014
Prosecutors didn't have all the facts before filing charges against two administrators in the Penn State sex abuse case, lawyers for the men said after the attorney general's office changed the date of a key allegation that former assistant football coach Jerry Sandusky sexually assaulted a boy in a locker room shower.
Tim Curley, on leave as athletic director, and Gary Schultz, a vice president who has retired, are fighting allegations that they lied to a grand jury and failed to properly report suspected child abuse. Their lawyers said the statute of limitations had expired on the latter charge.
The state attorney general's office said in its court filing that investigators have concluded the alleged attack took place around Feb. 9, 2001. Previously filed documents, including a grand jury report issued before Sandusky's arrest in November, dated it March 1, 2002.
Mike McQueary, a graduate assistant at the time, has said he complained to coach Joe Paterno of seeing the boy in the shower naked with Sandusky. He testified in December that he believed Sandusky was molesting the boy and "having some type of sexual intercourse with him." He said that because of his vantage point, he could not be certain it was intercourse.
Penn State's trustees have said they fired Paterno as coach partly because of his response. Paterno reported the matter to Schultz and Curley, which trustees have called "his minimum legal duty" and "a failure of leadership." Paterno was fired as coach in November and died in January of lung cancer.
Lawyers for Curley and Schultz — Caroline Roberto and Tom Farrell — issued a statement accusing prosecutors of filing charges before knowing the facts.
"Now, it is clear that Mike McQueary was wrong in so adamantly insisting that the incident happened the Friday before Spring Break in 2002," their statement said. "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 (the failure to report charge), and it will be dismissed."
The judge has issued a gag order prohibiting lawyers on both sides from speaking about the Sandusky case.
Scranton defense lawyer Joseph D'Andrea, who is not involved in the Sandusky case, said the one-year time change may not affect the prosecution, assuming all other relevant facts remain consistent. He said recollections of dates over a 10-to-12 year time span are naturally imperfect.
"If all the other facts match up to be identical, I think it's just an error without any harm for the prosecution," D'Andrea said. "However, if there are other inconsistencies, it gives the defense a reason to create some doubt about the credibility, sincerity, honesty and true recollection of what McQueary had to say."
Reached by phone, McQueary's father, John McQueary, declined to comment on his son's behalf.
The prosecution filing comes ahead of a hearing Wednesday in Bellefonte about defense subpoenas and any remaining disputes over what material must be disclosed to the defense.
Sandusky, 68, awaits a June trial on 52 criminal counts related to alleged sexual abuse of 10 boys over 15 years. He has denied the allegations.
Monday's filing said that investigators relied on "specific and authenticated findings" to conclude the shower incident occurred in 2001. Prosecutors have said they don't know who the boy was.
Sandusky attorney Joe Amendola has maintained the 2002 date was incorrect. He has said a young man told him that he believed he might be the boy described in the shower allegation and that Sandusky had not abused him. Then, Amendola said, the young man got a lawyer and cut off contact.
Amendola said Sandusky has told him that he knew the young man but was convinced the date was in 2001, and at that time he had offered to help Curley locate the boy.
Associated Press writers Mike Rubinkam in Allentown and Genaro Armas in State College contributed to this report.