Key Witness Lost with Paterno’s Death

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Joe Paterno died on Sunday, partly weakening the prosecution of the state of two former officials of Penn State University who have been charged with the Jerry Sandusky child sexual abuse case.

Paterno was supposed to serve as a key witness at the trials of former athletic director Tim Curley and former finance and business vice president Gary Schultz. Still, it remains uncertain how much this lack of testimony will affect the state’s case against Schultz and Curley.

Paterno died of lung cancer, at age 85, and his son Scott described him as having been “serenely calm” prior to his passing away. He was reportedly antsy to get out of the hospital in order to start planning a relaxing getaway with his wife Sue. However, his health had apparently deteriorated by Friday afternoon, which led the family to announce his being in critical condition by Saturday. He died the next morning.

Scott confirmed that the late Paterno had not been bitter about his firing in November, following 46 years of serving as the football coach of the university.

In January, the late Paterno testified in the presence of a grand jury about having met with Schultz and Curley about Sandusky. He apparently told Schultz and Curley that a former graduate assistant by the name of Mike McQueary had reported to him about having witnessed Sandusky sexually assaulting a boy in the shower of the athletic facility of the university in 2002.

McQueary testified how he had informed Schultz and Curley, in a separate meeting, about the sexual nature of the incident he had seen.

The two former officials were charged with failing to alert the authorities about the occurrence. Schultz has already retired, while Curley is currently on administrative leave.

Widener School of Law associate professor Geoff Moulton, who also used to be a federal prosecutor, commented that with Paterno’s death, the charge will depend greatly only on the report given by McQueary. He described McQueary’s testimony as becoming even more critical at this point.

Several lawyers described the grand jury testimony given by Paterno as inadmissible, due to the fact that the proceeding had not included his cross-examination. Criminal defendants are guaranteed, according to the confrontation clause in the Sixth Amendment, the right to face up to the witnesses who testify against them. Given the passing away of Paterno, the lawyers representing Schultz and Curley no longer have the chance to challenge the credibility of the witness.

In addition to the charges against Schultz and Curley, they were also accused of lying to the grand jury. However, the grand jury report showed that the allegations came largely from their account of McQueary’s not telling them the sexual nature of the incident. In this scenario, the inability of Paterno to take the stand would turn out not to be as critical, even with some obvious effect.

A Philadelphia criminal defense lawyer, Howard Klein, questions why Paterno was the one who was told the information. He describes McQueary as becoming more credible in light of Paterno’s version of the story. He felt that he could label Paterno a corroborating witness.

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