Secrecy was the order of the day in late 2010, when the Thirty-third Statewide Investigating Grand Jury convened in the Harrisburg offices of Pennsylvania Attorney General Tom Corbett. In order to protect the integrity of the Sandusky investigation and the privacy of people called to testify, no public announcement was made about the meeting to be held in a room in the Strawberry Square offices of the attorney general. The twenty-three grand jurors and seven alternates who would weigh the case took an oath not to disclose matters occurring before them. The names of persons subpoenaed were not divulged to anyone beforehand, although after their testimony they had the right to speak to anyone of their choosing.
The grand jury system was perfectly suited for the Sandusky case. Investigators had collected a substantial list of young men who said they had been sexually assaulted by the coach. Other people who were going to testify had eyewitness accounts of Sandusky’s activities. Prosecutors also wanted the panel to deliberate subtler issues, such as why Penn State officials didn’t do more to stop Sandusky for almost a decade. Was it because they didn’t want to tarnish the university’s pristine image? Was it a concerted cover-up? Were officials at Penn State telling the truth about their actions? The prosecutors wanted grand jurors to hear answers to those questions from as many witnesses as possible.
The prosecutors knew some of the accusers had emotional problems or troubled pasts. Some of their stories were problematic too because they were vague. The times and dates when abuse had occurred could not be pinpointed. But when the ten young men delivered their first-person accounts, they impressed the grand jury with the similarities in their stories.
Assistant Coach Mike McQueary was the first independent witness to say he personally saw Sandusky abusing a child in a football locker room shower in 2002. He also provided a firsthand account of how university officials failed to pursue legal action against the coach. When McQueary testified, he did not know about the 1998 incident, in which Sandusky admitted showering with an eleven-year-old boy. Although Penn State police and the Pennsylvania Department of Public Welfare had investigated the claim in 1998, as in 2002 nothing of consequence was done about it.
During his testimony McQueary first explained the details of his view of Sandusky’s sexual assault. He believed the boy was a ten-year-old child. He believed Sandusky was anally raping the boy, or at the very least was sexually assaulting him. After he testified about the shower incident, McQueary told the grand jury he reported what he had seen to Joe Paterno. He explained that Paterno told him he would send it up the chain of command, to Athletic Director Tim Curley and Vice President Gary Schultz, the liaison with the school’s police department. McQueary testified that Curley told him that Sandusky would be barred from bringing children to the football facilities and that the incident would be reported to officials of The Second Mile charity.
THE GRAND JURY WAS STILL convened in early 2011 and hearing testimony when Penn State officials became aware that they might also be the focus of the probe. They also knew as many as twenty Penn State employees had been interviewed by investigators. The officials had been told to expect grand jury subpoenas. Still, most believed that the Sandusky investigation had little to do with them. They thought that if they were called before the grand jury, they would be there as friendly witnesses, used to fill in the procedural blanks needed to paint a picture of how Sandusky could have used university facilities as a playground for sexual abuse.
Almost all of the Penn State witnesses were represented by a former Pennsylvania Supreme Court justice, Cynthia Baldwin, a Penn State graduate. Baldwin had served two years on the state’s highest court to fill the term of a justice who had died, then had not sought retention. Prior to that, she had served as an Allegheny County common pleas judge in Pittsburgh. After her departure from the supreme court, she became chief legal counsel for Penn State.
On January 12, 2011, Baldwin and her clients, Joe Paterno, Tim Curley, and Gary Schultz, arrived at the courthouse in Harrisburg. Baldwin was present when prosecutors conducted pre-interviews with all of them. Normally this is the time when defense lawyers get an idea of the nature of what prosecutors are trying to determine. If lawyers believe their clients could incriminate themselves when they go in front of the grand jury, they will demand immunity for them. If immunity is not granted, lawyers can instruct their clients to refuse to testify under the U.S. Constitution’s Fifth Amendment protections from self-incrimination. That day, however, neither Baldwin nor the three men thought there was a need for immunity.
Paterno was treated gingerly in his pre-interview. He did not want to be involved in explaining what he knew about Sandusky’s actions in the football showers, especially because it could impact both Curley and Schultz, individuals he held in high regard. Despite his reticence, Paterno learned he would be asked only a limited number of questions about what McQueary had told him about the 2002 incident. Prosecutors also wanted to know what he had reported to others, and if he had any knowledge of the 1998 report by campus police. As long as he told the truth, they informed him, his appearance in the grand jury room would be very short. He then faced the panel by himself and was done in fourteen minutes.
During those fourteen minutes Paterno testified about what McQueary had told him at his kitchen table. He said the former quarterback did not describe lurid details, but he made it clear that Sandusky was seen “fondling, whatever you might call it, I’m not sure what the term would be . . . a young boy.” He said it was of “a sexual nature.” Paterno said he knew nothing about the 1998 shower incident. He also testified that he had never discussed anything about sexual misconduct with his former assistant coach, who retired in 1999. While Paterno and Sandusky had known each other for almost forty years, the coach said they were not close friends and rarely socialized together.
Before Curley’s and Schultz’s pre-interviews with prosecutors, they were unaware that they themselves had become a focus of the grand jury investigation. From the tone of the questions, however, they quickly realized the prosecutors were challenging their accounts of what actions they had taken with regard to the 2002 shower incident. Prosecutors believed the men had failed to report an incident of sexual abuse to proper authorities, a crime in Pennsylvania. Curley and Schultz both admitted they hadn’t reported the matter to police and social service agencies, as required by Pennsylvania law, but contrary to what McQueary and Paterno had said, they had not been aware that sexual abuse had allegedly taken place. Despite the tone of the interviews, Baldwin did not request immunity for either of them.
Although Paterno’s brief appearance had been relatively benign, first Curley and then Schultz were subjected to harsh questioning when they took the witness chair in the secret proceedings. Frank Fina, head of the attorney general’s investigations branch, led the questioning. Fina walked both of them through the events of 2002, pointedly using the McQueary transcript. Fina was alleging the men had sanitized McQueary’s report in their efforts to perpetrate a cover-up.
Curley was steadfast in his insistence that McQueary did not tell him there were sexual elements to the incident. As Fina vehemently pushed back with specific references to McQueary’s testimony about what he called “the rape of a child” in the shower, the athletic director did not budge. “Absolutely not, he did not tell me that,” Curley insisted.
“How would you characterize what McQueary told you?” Fina asked.
“I can’t remember specifically, but my recollection is they were kind of wrestling, and were horsing around,” Curley answered.
“Were they naked?” Fina asked.
“No,” responded Curley.
“Was there sexual conduct?”
“No.”
“At any time?”
“No.”
For about forty minutes Curley repeatedly insisted that McQueary had not reported a case of sexual misconduct against Sandusky. He also denied knowing anything about the 1998 incident investigated by campus police. Fina was trying to get Curley to confirm his theory that inaction by top Penn State officials allowed Sandusky to abuse more children for almost a decade. Curley still didn’t budge, and his lawyers would later say that he was telling the truth.
Schultz repeated much of the same when he followed Curley into the grand jury room. Unlike Curley, Schultz knew about the 1998 incident because his job responsibilities included oversight of the university police department. He said he told very few officials at Penn State about that incident because the Centre County district attorney declined to file charges and a state welfare official considered the allegation of abuse unfounded. He insisted that although the two reports four years apart had similar markings, the 1998 incident did not affect his decision-making process in 2002. He testified that since there were no overt allegations about a specific sexual assault in McQueary’s report, he didn’t report it to the Penn State police and never made an attempt to identify or question the child. When Fina confronted him with the details of McQueary’s testimony, Schultz too insisted that McQueary never mentioned anything regarding a sexual assault. He said after he and Curley made a brief report to President Spanier, all of them agreed the proper solution was to order Sandusky not to bring young children into football facilities again and to report the incident to officials at The Second Mile charity. By the tone of the questioning it was clear to Schultz that Fina thought he was lying.
By the time they left the grand jury, Schultz and Curley realized they were the focus of an investigation for failing to properly report the 2002 incident. It also seemed that prosecutors thought they had lied before the grand jury about what McQueary had told them. Although in some instances witnesses are permitted to return to the grand jury to modify their statements, Baldwin did not ask for that opportunity for her clients. They left Harrisburg wondering whether their own words would be used against them. They would learn the answer to that about ten months later.
AS THE GRAND JURY INVESTIGATION progressed and more alleged accusers brought their stories before the panel, prosecutors continued to focus on a cover-up. The second case they pursued in that regard was the 1998 investigation against Sandusky. On March 10, 2011, every official related to that incident was brought before the grand jury. Among them was Detective Ronald Schreffler of the Penn State Police Department, who had led the month-long investigation into the accusations. Also testifying were Jerry Lauro of the Pennsylvania Department of Public Welfare, who worked with Schreffler on the probe, and Karen Arnold, a former assistant district attorney in Centre County, who handled child abuse cases for the office for many years. Before her testimony Arnold was specifically told that prosecutors were seeking evidence of a cover-up by Penn State officials, but she repeatedly told them she had no information of a cover-up. Her own boss, Ray Gricar, who had decided not to prosecute at the time of the 1998 investigation, had disappeared in 2005. Arnold told prosecutors she had little information about why Gricar had decided not to press charges.
When Detective Schreffler entered the grand jury room, he had in his possession the ninety-five-page report he had compiled. He testified that Ray Gricar had discounted the investigation in one conversation with him, insisting there was no evidence of sexual misconduct on the part of Sandusky.
Jerry Lauro, the welfare investigator, testified as to his role in the probe. He said Sandusky claimed the boy’s mother misconstrued what was going on, and that the incident had not been sexual. In addition, back then a mental health professional had reviewed the evidence provided by Schreffler and had determined that Sandusky did not match the profile of a sexual predator.
Neither Arnold, Schreffler, nor Lauro provided the smoking gun that a deliberate cover-up had taken place.
By the time Graham Spanier, the president of the university, was called to testify, he was aware the Patriot-News of Harrisburg was preparing a story saying Jerry Sandusky was the target of a grand jury investigation. Spanier was also being represented by Cynthia Baldwin. He was one of the few officials who agreed to appear before the grand jury without being subpoenaed. Baldwin did not request immunity for him either.
Although Spanier was well aware of the extent of the grand jury probe by the time he did his pre-interview with Deputy Attorney General Jonelle Eshbach on March 22, he wasn’t overly concerned. At that point it was clear that the outcome of the investigation was not going to cast the university in a positive light, but he intended to be as helpful as possible. Spanier considered himself to be a lifelong proponent of law enforcement; he saw no reason to change that philosophy before the grand jury. For years he had enjoyed top government security clearance through working with the FBI as chair of the National Security Higher Education Advisory Board. He had also worked with the National Counterintelligence Group in Washington, D.C.
To Spanier, the pre-interview was relatively uneventful, filled with questions about the operations of the university. As for Sandusky, Eshbach wanted to know what Spanier knew about the 2002 report by McQueary, when he knew it, and what he did about it. Spanier told Eshbach essentially the same things Curley and Schultz had said. He had received a nonspecific report from his underlings in 2002 about a staff member who said Sandusky and a young child were “horsing around” or engaged in “horseplay” in a football locker room shower. He said the senior officials did not tell him the event involved sexual abuse, did not identify the staff member, and did not tell him anything about the identity of the child. He said he did not even know Sandusky and the child were naked. He told the prosecutor Curley and Schultz told him about the incident in a short, unscheduled meeting at his Old Main office. Since the report did not appear to include criminality, Spanier said he quickly approved of their decision to ban Sandusky from bringing children to Penn State facilities and to report the inappropriate activity to The Second Mile’s administrators. It was not referred to law enforcement because neither of his close associates believed criminality was involved.
When he made his appearance before the panel on April 13, Spanier expected his testimony would be about the workings of the university and the vague 2002 report Curley and Schultz had made to him. He did not know his underlings had become prime targets of the probe.
Eshbach casually asked him questions about rules concerning children on campus, the hours of access to Penn State’s 1,700 buildings, and specifics about the Lasch Building, where many of the alleged assaults had occurred. Deputy Attorney General Frank Fina took over the questioning with a sterner tone. For the first time Spanier realized he was being asked questions that could implicate his aides in criminal activities, which he found abhorrent because he did not believe they had done anything wrong. He was aghast when Fina asked him angrily if he thought sodomy between a grown man and a boy in a Penn State football locker room shower was appropriate. Would he, the prosecutor wanted to know, insist on a full-scale investigation if he received a report about man-boy sodomy in a university shower? Spanier said that was the first time he’d heard of such a thing, but he most assuredly would sanction a probe under such circumstances. Not only had he himself been physically abused as a child, but he was trained as a family therapist, he said. He would never turn away from such information.
Fina walked him through the inconsistencies between what McQueary said under oath and the testimony from Curley and Schultz. Spanier reiterated what he had told Eshbach in the pre-interview: his underlings had told him the incident involved “horseplay” or “horsing around.” He had not heard anything related to anal rape or sexual abuse. He didn’t even know McQueary was the staff member who had made the report until the prosecutor divulged that information to him.
Spanier insisted that Schultz had never told him about the 1998 locker room shower incident involving Sandusky. He admitted that if he had known about the earlier incident his reaction may have been different in 2002. When Fina questioned him about Sandusky’s retirement shortly after the 1998 incident, Spanier said he believed the former coach left the employment of the university because Paterno thought he was spending too much time with the charity to do his job properly. He also said that Paterno had told Sandusky that he was not going to be his successor as head coach. Specifically Spanier testified that he thought Sandusky left Penn State because the State Employee Retirement System offered such a substantial early retirement incentive that the coach wanted to take advantage of it. After Paterno gave him the bad news about his head coach prospects, he saw no reason to stick around. Since Spanier claimed to know nothing about the 1998 investigation into Sandusky, he could only deny any cause-effect relationship between Sandusky’s quiet exit and the 1998 report.
Spanier said he had not spoken to Curley or Schultz about their testimony, although he knew they had testified. In fact, he did not even tell them he too was appearing before the secret panel.
When he left the grand jury that day, Spanier told his lawyer he felt he had been sandbagged. Now he realized that the scope of the investigation had been broadened to include questions about what Penn State officials knew about Sandusky’s conduct and what they had done about it. From the tone of the questioning, it was clear prosecutors were pursuing evidence of an illegal cover-up that had criminal implications for his trusted aides. That, he told almost anyone who would listen, was not true. He feared the prosecutors had not believed him.
As time passed with no action from the grand jury, Baldwin told Spanier that they were nearing the eighteen-month point, when sessions expire. If that happened without charges being announced, the case would go away; prosecutors rarely presented evidence again to new grand juries. On the first Saturday of November Spanier would learn that Baldwin was patently wrong.