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Dec 142011

Legally speaking, it was no surprise that Jerry Sandusky waived his preliminary hearing.  He is looking at a possible life sentence should he be convicted of the charges against him.  Sandusky has maintained his innocence and both sides have said that this case is going to trial.  While there are a lot of folks talking about the implications for the criminal case, what cannot be forgotten are the serious consequences the waiver of the preliminary hearing has in the civil case that has been filed and are forthcoming if they have not been filed already.  Here are the three most important implications the waiver has in the civil cases:

1)    The victims did not have to testify. Jerry Sandusky’s waiver of his preliminary hearing was a major victory for the Commonwealth since it did not have to put up any evidence of the charges against Sandusky in order to have the charges held for trial.  However it was an even bigger victory for the victims of the civil cases.  If Sandusky had proceeded with the preliminary hearing, all of the victims would have been required to testify about the heinous acts they are alleging Sandusky committed.  The victims’ testimony would have been transcribed, under oath and subjected to cross examination.  ­Each time a victim testifies, it leaves more room for the defense to find inconsistencies and find out more information regarding the alleged abuse that occurred.  For example, as a result of the waiver, we do not know the exact details of the abuse, other than what is reported in the two grand jury presentments. We do not know who the victims talked to about the abuse or any potential witnesses in the civil cases.  Additionally, the victims, most of whom are in their teens, did not have to take the stand and talk about what anyone would agree are truly horrible acts committed upon them.  The fact that the victims did not have to testify in the case is a major victory for the victims pursing civil cases.

2)    Mike McCreary did not testify.  If the Commonwealth chose to present Mike McQueary, the Penn State assistant coach who, according to his grand jury testimony, witnessed Jerry Sandusky anally raping a young boy in the showers at a Penn State facility, McQueary would have had to testify under oath what he saw, heard, etc.  Mike McQueary’s grand jury account has come under attack in recent days.  Apparently, McQueary told friends through an email that he did stop Sandusky in the shower after witnessing him anally raping the young boy.  There is also a report that a family friend of McQueary who spoke with McQueary on the night he allegedly witnessed this rape has stated he asked McQueary three times whether he witnessed anything sexual going on between Sandusky and the young boy and McQueary repeatedly answered “No”.  McQueary’s credibility in the civil case is of utmost importance.  He is the link to holding Penn State liable for not protecting children after it knew or should have known that Jerry Sandusky had engaged in inappropriate sexual conduct with a minor and allowed Sandusky to bring minors to Penn State’s campus, facilities and events after learning of such.  If McQueary is not believed, then Penn State’s liability seriously comes into question as the Plaintiffs will have to show that McQueary made officials at Penn State aware that he witnessed Sandusky sexually abusing a young boy.  What McQueary witnessed, we now don’t know, because he did not have to testify.  However, with the preliminary hearings of Tim Curley and Gary Schultz occurring this week, those questions may be answered as McQueary is the sole basis of the perjury charges that have been levied against Curley and Schultz. McQueary’s testimony at that hearing should shed some light on whether he did, in fact, actually witness Sandusky abusing the boy and whether he did, in fact, tell Penn State officials just that.

3)     None of the Commonwealth’s evidence was presented.  Because the Commonwealth did not present any evidence at the preliminary hearing due to Sandusky’s waiver, we don’t know whether there is any independent, corroborating evidence to establish that Jerry Sandusky engaged in sexual activity, i.e. other eye witnesses, DNA evidence, etc.  Obviously, all of this information would be extremely helpful to the Plaintiffs in establishing that the abuse occurred.  However, we won’t know whether such evidence exists now unless and until there is a trial in the criminal matter or the evidence is subpoenaed by the civil attorneys during the discovery process in the civil cases.

 Posted by on December 14, 2011 Latest News