Tuesday, December 17, 2013

Mike McQueary's Testimony: The Foundation of Sand


Executive Summary

 "And every one that heareth these sayings of mine, and doeth them not, shall be likened unto a foolish man, which built his house upon the sand: And the rain descended, and the floods came, and the winds blew, and beat upon that house; and it fell: and great was the fall of it." [Matthew 26-27, King James version]

Mike McQueary's court testimony is the foundation upon which the controlling majority of Penn State's Trustees, Louis Freeh, the NCAA, the prosecutors in the criminal cases against Graham Spanier, Gary Schultz, and Tim Curley, and media personalities Buzz Bissinger and Dan Bernstein (CBS Chicago) have all built their houses of credibility. This report shows unequivocally that this foundation is one of sand, and all these houses must therefore fall together.

McQueary's testimony is an excellent illustration of principle that was taught very graphically in a class for law enforcement officers. A man walked in during the lecture, shot the instructor (with blank rounds), and then ran out. The instructor got up and told the class, "You have just seen a murder; now write a description of the perpetrator." The results were, to say the least, embarrassing. "Scott Fraser: Why eyewitnesses get it wrong," goes into detail about problems with human memory.[1]

Disclaimer: the author is not an attorney, and nothing here constitutes legal advice.

Mike McQueary (December 16, 2011) Did Not See a Crime Reportable to Police

OCR of the Curley-Schultz-Hearing-Transcript.pdf  December 16 2011.[2] Bracketed material and highlighting have been added. The key takeaways are as follows:
(1)   Mike McQueary did not regard what he thought he saw as cause to involve the police. Neither did his father, on the basis of what McQueary told him. McQueary added explicitly that he would have called the police for a home burglary, but not for whatever it was he thought Sandusky was doing with the boy in the shower.
(2)   McQueary did not think to write down what he thought he saw, and the date and time.
(3)   McQueary's sole hint that Jerry Sandusky was sexually assaulting a boy consisted of three slapping sounds, and what he actually saw contravenes the proposition that any such crime was occurring.
(4)   The Grand Jury presentment against Tim Curley and Gary Schultz said nonetheless that McQueary had testified that he saw Sandusky engaged in anal intercourse with a minor. This does not speak favorably of the credibility of that presentment.
CONCLUSION (and this would be my conclusion as a juror in the Curley, Schultz, and Spanier perjury trials): Mike McQueary KNEW only that Sandusky was horsing around with a boy in the shower, and therefore the people to whom he told his story KNEW only that McQueary saw Sandusky horsing around with a boy in the shower. With the benefit of hindsight, of course, we might suspect that Sandusky may well have been grooming the boy for sexual purposes, but this does not change the fact that, in 2001, Graham Spanier, Tim Curley, and Gary Schultz knew only the information shown below.
Starting on Page 13. Compare this to the Grand Jury presentment's statement that McQueary saw the boy “with his hands up against the wall, being subjected to anal intercourse by a naked Sandusky."
A Jerry is Coach Sandusky
Q And you indicated upon this first glance, you indicated that there was another individual in the shower with Jerry Sandusky?
A Yes.
Q And you described a particular position that you observed him in.. Could you describe that again, please?
A Yes. The boy was up against the wall , facing the wall, his hands maybe shoulder height on the wall. And Jerry was directly behind him in a very, very, very close position with Jerry’s hands wrapped around his waist or midsection. I couldn’t see his actual hands, but his arms were wrapped around. And it appeared upon looking the second time, I said to myself, they’re in a very sexual oriented -- a very sexual position.
Q What did you believe they were doing?
A I believed Jerry was sexually molesting him and having some type of intercourse with him.
Q And that was based on what you observed in terms of the positioning?
A Yes, based on the positioning. I did not see insertion nor was there any verbiage or protest, screaming or yelling, so I can’t sit here and say that I know 100 percent sure that there was intercourse, but that’s what I said to myself and that’s truly what I believed was happening.
Q That’s what you believed was occurring?
A Yes.
Starting on Page 71. Compare this to the Grand Jury presentment's statement that McQueary saw the boy “with his hands up against the wall, being subjected to anal intercourse by a naked Sandusky."
Q So a decision was made to call Mr. Paterno the next morning?
A [McQueary] Yes, ma’am.
Q And you did that, I think you said, and then you went to Mr. Paterno’s home, correct?
A Yes, ma’am.
Q And approximately what time did you arrive?
A 8a.m.
Q And how long did you spend with Mr. Paterno?
A Ten minutes.
Q And when you explained what you saw to Mr. Paterno, you did not use the term anal sodomy?
A I’ve never used that term.
U You’ve never used that term?
A Anal sodomy?
Q Yes.
A Those two words together?
Q Yes.
A No, ma’am.
Q Did you explain to Mr. Paterno anal sex?
A No, I did not explain that to Mr. Paterno.
Q Did you explain to him anal intercourse?
A No, I would have explained to him the positions they were in roughly, that it was definitely sexual . but I have never used the word anal or rape in this -- since day one.
Q Right. And you didn’t use those words because you weren’t sure that that is what was
happening in the shower, right?
A Ma’am, I’m sure I saw what I saw in the shower. I’m sure of that. I did not see insertion or penetration and I didn’t hear protests or any verbiage, but I do know for sure what I saw and the positions they were in that --and it was very clear that it looked like there was intercourse going on, ma’am.
Q But you could not say for sure that that’s what you saw? 
A I’ve testified that I cannot tell you 1,000 percent sure that that’s what was going on.
Q Well, let’s just say 100 percent sure.
A Okay, 100 percent sure.
Q Okay. You can’t say that?
A No.
Q When you looked into the shower --
A Yes, ma’am.
Q - - through the mirror, did you see Mr. Sandusky’s genitals touching the boy?
A No, absolutely not.
Q When you looked the second time into the shower, did you see Mr. Sandusky’s genitals touching the boy?
A No, his body was blocking that area of his body, to be frank with you.
Q Okay. Was any part of Mr. Sandusky’s body, did you see up against the boy touching the boy?
A Yes. They were as close as you can be, yes.
Q Okay. All right. So when you went to Mr. Paterno’s house, did you describe the position that Sandusky and the boy were in?
A Yes. I gave a brief description of what I saw. You don't ma’am, you don’t go to Coach Paterno or at least in my mind I don’t go to Coach Paterno and go into great detail of sexual acts. I would have never done that with him ever.
Q But it was your decision to go to Coach Paterno and tell him what happened in the shower?
A Without a doubt my decision, yes, ma’am.
Q And you went to Coach Paterno in lieu of, not in addition to, going to the police that night?
A I went to Coach Paterno first.
Q Okay. Did you go to the police that day of -- the day you spoke to Mr. Paterno?
A No.
Q Did you go the next day?
A No, I did not.
Q Now, you told us that you told Coach Paterno that you -- well, let me ask you this. Did you tell Coach Paterno that you heard sounds?
A Yes, ma’am.
Q And you told him what you saw, the position of the two individuals?
A Again, roughly, yes
Q Did you make any conclusion to CoachPaterno about what was happening?
A Yes. It was extremely sexual, yes.
Q Did you say extremely sexual in nature?
A In nature?
Q Yes.
A I can’t remember if I said the word in nature or not, ma’am. I don’t know that.
Q Did you ever use the word fondling?
A I’m sure I did to help describe what I was seeing. I’m sure I did use the word fondling, yes, ma’am
Q Okay. Did you see any type of fondling with Mr. Sandusky’s hands on the boy?
A No. I’ve already stated that when I saw his arms wrapped around the boy, that I could not
see his hands. The bodies were blocking --
Q Okay.
A - - his hands so I cannot say that I saw Mr Sandusky’s hands on a boy’s genitals, no, ma ‘ am.
Q So you can’t -- how would you describe fondling? I’m sort of confused here.
A Fondling is touching someone in a sexual way. I don’t know if that’s the exact definition, but that’s what my definition is.

Starting at the bottom of page 88.
Q [defense attorney Farrell] One last question about that date. You didn’t make any written record in a journal, a diary, a computerized calendar to record the date this happened, did you?
A [Mike McQueary] No, I didn’t think recording something like this would be smart.
Q Why is that?
A Because I didn’t think it would -- I just didn’t think it would be smart. I had my memory and I know what I saw.

Q The night that you say you saw this, well, on that night did you think you saw a crime happening?

A Yes, to me that is a crime, sir, yes.

Q Did you use the word crime in speaking with your father?

A No. He can tell what a crime is and what it is not, sir.

Q Uh-huh. And a crime is something, of course, that would require police action, isn’t it?

A I’m sorry?

Q A crime would require police response in your mind, would it not?

A Sure.

Q But, as you said, you didn’t call the police the night this happened?

A The night this happened I did not call the police, no, sir.

Q Your father didn’t tell you to call the police the night this happened?

A No. We ended up not calling the police

Q So the answer is, no, your father did not tell you to call the police?

A No.

Q And no one else told you to call the police that night?

A No. [Conclusion: McQueary says he saw a crime, knew that a crime required a police response, but did not write down what he saw or call the police. His father concluded, based on what McQueary told him, that a police response was not appropriate. All this suggests that McQueary did not, in fact, see a crime, but merely inferred from the circumstances that one might have possibly occurred.]

Q In speaking to your father that night, did you use the word intercourse?

MR. BEEMER [prosecutor]: Objection, relevance, Your Honor.

MR. FARRELL: Your Honor, this is what the man has testified to repeatedly, what he said to these various people.

MR. BEEMER: We’re getting into an area that has nothing to do with the prima facie case, Your Honor. It’s relevant what he told Mr. Curley and Mr. Schultz.

THE COURT: Mr. McQueary, you can answer that question.
THE WITNESS: Again, I don’t think – I don’t know if I used the word intercourse with my father, but my father definitely knows what happened in the shower.


Q Based upon what you told him?

A Yes, sir.

Q The mirror you described looking into, was it a full length? In other words, toe to head mirror or a partial mirror?

A Partial mirror, sir.

Q How big?

A I would say up to most people’s waists, so waist and above.

Q Was it the mirror over the sink?

A Yes, sir.

Q How wide was that mirror?

A I would say it’s a good four feet, if not more, wide.

Q That mirror’s still there in the staff --

A Yes, sir; yes.

Q And the showers today are as they were in 2002?

A I think so. Let me correct myself. I haven’t been in that locker room in a very long time. So I think everything is as it was.

Q A very long time meaning how long?

A Eight years. Roughly eight years I haven’t been in that locker room. I’ve been in the full-time assistant coaches’ locker room, sir.

Q Okay. But you did go back into that locker room after the night in question?

A Yes, I was still a support staff member for a couple of years, yes.

Q So you stopped going into that locker room when you became part of the coaching staff?

A Yes, sir, that’s correct.

Q Since the night in question, have you seen Mr. Sandusky in the coaching staff locker room at the Lasch Building?

A Since that night have I seen Coach Sandusky in the locker room?

Q Yes.

A No, sir.

Q But you have seen him in the Lasch Building?

A Yes.

Q [defense attorney] When you looked in the mirror, you could see Mr. Sandusky’s back; is that right?
A [McQueary] His whole backside, his whole backside, sir.
Q All right. And, again, could you see him from the side or from the back?
A Kind of about a quartering away angle.
Q And was his body obstructing the view of the boy’s body?
A A lot of the boy --
MR. BEEMER [prosecutor]: I’m going to object, Your Honor. This has been asked and answered.
MR. FARRELL [defense attorney]: I don’t believe it has, Your Honor. It’s been answered anyway so --
THE COURT: Thank you.
THE WITNESS: Let me make sure that you got that answer. I saw a lot of the boy but not all of the boy.
Q Uh-huh. Were the boy’s feet on the floor at that time?
A Yes.
Q And was the boy bent over or standing up?
A In an upright position.
Q Meaning not bent over?
A Not bent over, no, sir.
Q So the hands extended straight from the
A Roughly that height, yes.
Q The color of the boy’s hair?
A I wouldn’t be able to tell you, sir. It was wet.
Q The boy’s height?
A I wouldn’t be able to give you an accurate height.
Q Well, Mr. Sandusky --
A Do you want me to guess or do you want me to give you an accurate height?
Q Well, I want you to give me an accurate height.
A There’s no way I could do that without a measuring tape, sir.
Q You know Mr. -- how tall are you?
A I’m six four and a quarter.
Q How tall is Mr. Sandusky?
A Again, I can’t give you an accurate height. He’s a couple inches lower than I am.
Q So over six feet?
A I would say Jerry is over six feet, yes.
Q And the boy’s head was up to what part of Jerry’s body?
A I would say up to his pectoral muscle, in that area somewhere.
Q Okay. So around the nipple area?
A Yeah, around there.
Q The top of the boy’s head?
A Yes.
Q So the boy was about, say, a foot and a half shorter than Mr. Sandusky?
A I would say a foot. [The height disparity would seem to preclude Sandusky from engaging in a sexual act if both he and the boy were standing, as they were.]
MR. BEEMER: Objection, Your Honor.
THE WITNESS: Five two, five three.
THE COURT: If we can continue to move, please.
Q At no time this night did you hear anything, did you hear the boy say anything, right?
A I heard slapping and I did not hear any verbiage at all in any way.
Q From either fellow?
A From either person.
Q And the slapping, you said you heard two or three slapping sounds?
A To my memory, two or three rhythmic slapping sounds, yes, sir.
Q So like (counsel makes slapping sound three times)?
A You got it.
Q And you heard that once and then not again?
A Right, right. [It was from these slapping sounds that McQueary inferred that a sexual act was in progress.]
Q The third time you looked at Mr. Sandusky and the boy, they were both facing you?
A Yes, sir.
Q And at this time you could see the boy’s face, right?
A Yes.
Q Can you tell us the boy’s complexion?
A Caucasian.
Q Was he fair-skinned, olive-skinned?
A I didn’t sit there and stare. I would not be able to tell you, sir, accurately.
Q At this point can you see the color of his hair, the third time?
A I see the color of his hair but, again, he’s wet. So for me to sit here and say I know the actual color of his hair, I would not be able to tell you that, sir.
Q Did he have any facial hair?
A No.
Q Hair on his chest?
A No.
Q Pubic hair?
A I didn’t sit there and stare, but I don’t recall that, no.
Q You don’t recall if he did or he didn’t?
A Did not. I don’t think he did have pubic hair, sir. As I stated before, in my opinion he was prepubescent. He was a ten- or twelve-year-old boy.
Q Uh-huh. As the boy and Mr. Sandusky stood looking at you, they were both still naked?
A Naked, yes, sir.
Q Did Mr. Sandusky have an erection?
A I can’t tell you that, sir. I don’t know. I did not - - again, I don’t look and stare down there.
Q At any point during this evening, did you see whether or not Mr. Sandusky had an erect penis?
A No, I did not.
Q At any point during this night, did you see a look of pain on the boy’s face?
A Pain?
Q Yes.
A No.
Q And you never said anything to that boy?
A Never said anything, no.
Q On that night, did you have a cell phone with you?
A I can’t recall if I had a cell phone with me or not on that night
Q Do you know if you called your father from a cell phone or a phone in the Lasch Building?
A I called him from a landline at my desk.
Q And your desk, you say, was on the second floor?
A Yes, sir.
Q And the shower on the first floor?
A Yes, sir.
Q When you went up to the second floor after the third time, you say you saw Mr. Sandusky and the boy, you left the boy with Mr. Sandusky, did you not?
A Yes, they were separated and he was still with Mr. Sandusky when I left that locker room. yes.
Q When you say separated, they were still side by side, right?
A No, not side by side. To me side by side is six inches or closer. They were four or five feet in between them.
Q Still in the shower?
A But in the shower room together, yes.
Q Naked?
A Yes, sir.
Q And that’s how you left the boy?
A Yes.
Q And did not call the police?
A I did not call the police.
Q Prior to this occasion, had you ever had any contact with the Penn State University Police?
A Have I ever had contact with them?
Q Yes. Talked to any of them?
A I’m sure I had on the street hello or something, sir, yes, but I was not a part of a criminal investigation at Penn State. I mean, not in detail conversation, I guess if that’s what you’re asking.
Q Yes. You knew Penn State had uniformed police officers?
A Yes, absolutely.
Q Carry guns?
A Yes.
Q You know the town of State College has uniformed police officers?
A Yes, absolutely.
Q Carry firearms?
A Yes.
Q You never saw Mr. Schultz in a uniform, did you?
A Not in a uniform.
Q Never saw him carrying a firearm?
A Not a firearm, no.
Q And during your time at Penn State, did you ever have occasion to report -- let’s put aside this incident. Did you ever have occasion to report any incident to either the Penn State Police or the State College Police?
A No, I’ve never reported incidents.
Q Never had your car broken into?
A No, sir.
Q Or home burglarized?
A No.
Q But had that happened, it would have been one of these uniformed police officers you reported it to, right?
A Yes, for a home burglary, yes, not for Jerry Sandusky doing what he was doing to a boy, just to address your point.
Q Well, tell us why would you not report that.
A Because it was delicate in nature in my opinion, sir, and I tried to use my best judgment.
Q And, as you say, your best judgment included leaving the boy with Mr. Sandusky,right?
A Yes, I was sure the act was over.
Q You don’t know what happened after you left?
A I do not know what happened for sure after I left.
Q Never made any effort to find that boy, did you?
A I did not. [Joe Paterno was, however, supposed to have tried to find the boy according to Lanny Davis, whom the Trustees hired as their spin doctor after they fired Paterno.]
Q Did you ever ask anyone at the Second Mile about a boy who might have been with Mr. Sandusky on this night? [Tim Curley did, but was nonetheless accused of participating in a coverup.]
MR. BEEMER [prosecutor]: Your Honor, objection. He just answered the question.
THE COURT: Sustained.

McQueary Changed his Story in 2013

OCR of July 29, 2013 testimony July 29, 2013 Preliminary Hearing Transcript 1 of 2. McQueary now says he saw Jerry Sandusky molesting a child. Remember from 2011 that McQueary testified that he saw nothing he believed was reportable to police, or worthy of writing down what he had seen at the time in case his testimony was needed. Starting on page 8, regarding his meeting with Coach Paterno
A [McQueary] I had seen something terrible the night before in the Penn State football facility that I needed to bring to his attention right away.
Q And can you give the Court an idea of when you made that contact that day?
A I called him on a Saturday morning roughly at 8 a.m.
Q How unusual would it have been for you to contact Coach Paterno on a Saturday morning at
8 a.m.?
A I would not have ever dreamed of it. Would not -- under no circumstances did I think I
would call him on a Saturday morning as a GA.
Q But you did that as a result of something you had seen the night before?
A Yes.
Q Did you go -- where did you meet with him?
A At his house at the kitchen table.
Q And was there anybody else there that you know of?
A No.
Q And describe that meeting.
A I told him that I went to the locker room the night before in the Penn State football facility and that I had seen Coach Sandusky engaged in a very bad sexual act, molestation act with a minor. [But apparently not one bad enough for McQueary to have, per his 2011 testimony, elicited protests or distress from the alleged victim, or for Sandusky's sexual organ to align with the purported victim's anus, or for McQueary to have called police or written notes about what he thought he saw.]
From Page 60
Q You’ve been asked repeatedly if you told anyone in detail about what you saw. Did you talk in detail to Curley and Schultz that day at the Bryce Jordan Center about what you saw?
A Again, you know, in detail, I can say this. They definitely knew that it was a sexual act, a molestation act, between Jerry and a young boy in the shower.
[One must ask how Curley and Schultz could definitely know it was a molestation act, when McQueary himself testified in 2011 that he did not see sexual penetration, see or hear distress from the purported victim, or see Sandusky's and the boy's pelvic areas at the right level for the crime in question. One must also ask why, if McQueary definitely knew it was a molestation act, he did not call the police on the spot.]


The credibility of the controlling majority of Penn State's Board of Trustees, Louis Freeh, the NCAA, Buzz Bissinger, Dan Bernstein, and the prosecutors in the Curley/Schultz/Spanier cases rests entirely on that of Mike McQueary's sworn testimony. The relevant excerpts, as shown above, suggest conclusively that McQueary's entire story is based on his inference from a few slapping sounds of what might have been taking place. It is reasonable to dismiss this inference on the grounds of Mr. Fraser's statement, "The brain abhors a vacuum," along with the fact that Mr. McQueary said himself that he did not believe that what he saw was reportable to a law enforcement agency.

[1] http://www.ted.com/talks/scott_fraser_the_problem_with_eyewitness_testimony.html "Scott Fraser studies how humans remember crimes -- and bear witness to them. In this powerful talk, which focuses on a deadly shooting at sunset, he suggests that even close-up eyewitnesses to a crime can create "memories" they could not have seen. Why? Because the brain abhors a vacuum."
[2] http://media.pennlive.com/midstate_impact/other/Curley-Schultz-Hearing-Transcript.pdf

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