Editor's note: Jean Casarez is a correspondent for In Session on truTv.
With the passing of former Penn State head football coach Joe Paterno, there also comes the reality that prosecutors have lost an important witness in their upcoming trials of Penn State’s former defensive coach Jerry Sandusky, Penn State Athletics Director Tim Curley and former Senior Vice President for Finance and Business Gary Schultz.
What is memorialized, under oath, is Paterno’s grand jury testimony where he states that Mike McQueary came to his home one Saturday morning in 2002 to tell him he had witnessed Sandusky having inappropriate sexual contact with a young boy in the showers at Penn State. Paterno testified that he then went on to tell his superiors, Tim Curley and Gary Schultz.
Paterno’s grand jury testimony was not cross-examined. The lack of a cross examination could become an issue for Sandusky’s defense. That’s because Paterno will be legally defined as “unavailable to testify” in the trial and the defense will not be able ask questions which could have led to information that could possibly help their case.
But we do expect Paterno’s testimony will come into play. There’s case law that says if an unavailable witness’s testimony is supported by other facts it can be admissible, because Paterno’s testimony is corroborated by the testimony of others and because grand jury testimony is given under oath, it most likely will come in.
There is also the possibility that Paterno’s testimony could help the three defendants. Paterno never testified that he was told Sandusky was having actual intercourse with alleged Victim #2. This could aid in what we believe will be Sandusky’s claim that he was just “horsing around” with his young friend.
Therefore, Sandusky’s defense may be content without a cross examination of Paterno’s testimony. In addition, Curley and Schultz may also be helped by such limited testimony. If Paterno did not tell Curley and Schultz specific, graphic details of what took place in that shower, there’s still a question about whether Curley and Schultz had a duty to contact police about Sandusky’s alleged behavior.
The reality is that without more fully developed testimony from Paterno and a cross examination, we may never know the full story.
What did Paterno really know about Sandusky and his behavior with children?
What did he know about the 1998 investigation that did not result in charges?
What were his thoughts when nothing was done after reporting to his superiors in 2002 that alleged criminal activity was taking place in the showers at PSU?
Those questions will most likely never be answered.
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