Pa. deputy attorney general cites PSU 'inaction'

[December 17, 2011]  HARRISBURG, Pa. (AP) -- A graduate student waited a day after allegedly seeing a child being sexually assaulted on Penn State's campus before telling his supervisor, football coach Joe Paterno.

Paterno waited another day before calling the university's athletic director, who looped in a school vice president.

"It was a Saturday morning and I didn't want to interfere with their weekends," Paterno told a grand jury this year, recalling the unusual visit from graduate assistant Mike McQueary.

McQueary said he had seen former defensive coordinator Jerry Sandusky doing something "extremely sexual" with a young boy in a locker room shower.

On Friday, McQueary testified at a preliminary hearing for two Penn State officials -- athletic director Tim Curley and vice president Gary Schultz -- accused of covering up the story. He offered the most detailed public account yet of the child sex abuse allegations that have upended the university's football program and the entire central Pennsylvania campus.

Curley and Schultz are headed to trial on perjury charges after Friday's preliminary hearing, accused of lying to a grand jury about what McQueary told them.

Curly and Schultz waited another 10 days before meeting with McQueary to get more facts. Instead of calling police, they talked to two people: Sandusky and the executive director of his children's charity.

"I think it's a sad, sad, sad day, when you think about all of these victims, and you saw the inaction by a number of supposedly important, responsible adults. And there's a lot of inaction in this case," Marc Costanzo, a senior deputy attorney general, said after the preliminary hearing.

Besides the perjury charges, and the dozens of sex assault charges pending against Sandusky, Paterno and university president Graham Spanier have lost their jobs over the scandal.

Defense lawyers argued that McQueary "minimized" the alleged sexual assault when he talked to Paterno, ultimately leading their clients to believe that Sandusky's behavior was "inappropriate," but not criminal.

They say McQueary never relayed the seriousness of what he saw, leading them to think Sandusky was merely "horsing around."

"I didn't see any reason because I didn't think at the time it was a crime," Curley told the grand jury, according to testimony read into the record on Friday.

Curley, Schultz and Paterno have been criticized for not telling law enforcement about the 2002 charges. Prosecutors say Sandusky continued to abuse boys for six more years.

In about two hours on the witness stand, McQueary said again and again that what he saw was a sexual act, although he stopped short of saying he was sure that Sandusky, now 67, had raped the boy.

"I believe Jerry was sexually molesting him and having some type of sexual intercourse with him," McQueary said on Friday. He said later he "can't say 100 percent" that Sandusky and the boy were having intercourse because he was seeing Sandusky from behind.

He said after talking to his father, he went over to Paterno's home the next morning and said that what he had seen "was way over the lines, it was extremely sexual in nature." He said he would not have used words like sodomy or intercourse with Paterno, out of respect for the coach.

Paterno told the grand jury that McQueary said he saw Sandusky doing something of a "sexual nature" with the youngster but that he didn't press for details.

"I didn't push Mike ... because he was very upset," Paterno said. "I knew Mike was upset, and I knew some kind of inappropriate action was being taken by Jerry Sandusky with a youngster."

Paterno told McQueary he would talk to others about what he'd reported.

McQueary said he met about 10 days later with Curley and Schultz and told them he'd seen Sandusky and a boy, both naked, in the shower after hearing skin-on-skin slapping sounds.

"I would have described that it was extremely sexual and I thought that some kind of intercourse was going on," said McQueary.

McQueary said he was left with the impression both men took his report seriously. When asked why he didn't go to police, he referenced Schultz's position as a vice president at the university who had overseen the campus police

"I thought I was talking to the head of the police, to be frank with you," he said. "In my mind it was like speaking to a (district attorney). It was someone who police reported to and would know what to do with it."

The square-jawed, red-haired assistant coach spoke in a steady voice in his first public account of the alleged abuse, sometimes turning his seat and leaning in toward defense lawyers to answer questions. His voice rose a few times and he blushed once when describing the sexual encounter in the shower.

Defense lawyers for Curley and Schultz argued that a perjury charge in Pennsylvania cannot be based solely on one person's oath versus another's. The defense said uncorroborated testimony from McQueary is not enough, and sought to pick apart the ways he described the shower scene differently to different people.

The defense noted that McQueary admitted changing his description of the shower encounter when speaking with Paterno.

McQueary said he had stopped by a campus football locker room to drop off a pair of sneakers the Friday night before spring break, a quiet night on campus, when he saw Sandusky with a boy who looked to be 10 or 12 years old.

McQueary, 37, said he has never described what he saw as anal rape or anal intercourse and couldn't see Sandusky's genitals, but that "it was very clear that it looked like there was intercourse going on."

In its report last month, the grand jury summarized McQueary's testimony as saying he "saw a naked boy ... with his hands up against the wall, being subjected to anal intercourse by a naked Sandusky."

McQueary said he peeked into the shower three times -- the first via a mirror, the other two times directly. The last time he looked in, Sandusky and the boy had separated, he said. He said he didn't say anything, but "I know they saw me. They looked directly in my eye, both of them."

McQueary said the entire encounter -- from when he first entered the locker room to when he retreated to his office -- lasted about 45 seconds.

Curley told the grand jury that he couldn't recall his specific conversation with McQueary, but said McQueary never reported seeing anal intercourse or other sexual conduct. He said he spoke to Sandusky about it, who first denied having been in the shower with a boy, but later changed his story.

Schultz said he remembered McQueary and Paterno describing what the younger coach saw only in a very general way.

"I had the impression it was inappropriate," Schultz told the grand jury. "I had the feeling it was some king of wrestling activity and maybe Jerry might have grabbed a young boy's genitals."

Under cross-examination, McQueary said he considered what he saw a crime but didn't call police because "it was delicate in nature."

"I tried to use my best judgment," he said. "I was sure the act was over." He said he never tried to find the boy.

Paterno, Schultz and Curley didn't testify, but their entire grand jury testimony from January was read at the Dauphin County hearing.

Curley's attorney, Caroline Roberto, said prosecutors "will never be able to reach their burden of proof at a trial," in part because McQueary "minimized" the alleged assault to Paterno.

Schultz's attorney, Tom Farrell, predicted his client would be acquitted.

He also took a shot at Paterno, saying, "I'm an Italian from Brooklyn, and he may not have called the police but he may have done what I would have done, which is get the boys in the car with a few baseball bats and crowbars and take it to the fellow."

Sandusky says he is innocent of 52 criminal charges stemming from what authorities say were sexual assaults over 12 years on 10 boys in his home, on Penn State property and elsewhere.

Curley, 57, was placed on leave by the university after his arrest. Schultz, 62, returned to retirement after spending about four decades at the school, most recently as senior vice president for business and finance, and treasurer.

[Associated Press; By MARYCLAIRE DALE and MARK SCOLFORO]

Copyright 2011 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.