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Change in date of alleged Sandusky assault may help defense, say experts

Jerry Sandusky, a former Penn State assistant football coach charged with sexually abusing boys, pauses while speaking to the media at the Centre County Courthouse after a bail conditions hearing Friday, Feb. 10, 2012 in Bellefonte, Pa. AP Photo/Alex Brandon

Jerry Sandusky speaking to the media at the Centre County Courthouse after a bail hearing Friday, Feb. 10, 2012 in Bellefonte, Pa.
AP Photo/Alex Brandon
(CBS) STATE COLLEGE, Pa. - To many, it was the most disturbing part of the grand jury report detailing allegations of sexual abuse by former Penn State assistant football coach Jerry Sandusky: on March 1, 2002, Sandusky was allegedly seen having sexual intercourse with a young boy in a shower stall of a campus locker room.

Pictures: Child-sex scandal rocks Penn State

But according to papers filed by the prosecution, the state now believes that the incident in question occurred an entire year earlier, on February 9, 2001.

Sandusky's attorney, Joe Amendola, is prohibited from speaking to the media about the case because of a gag order in the case. But according to the Centre Daily Times, lawyers for Tim Curley and Gary Schultz, the two former Penn State administrators who are charged with lying to the grand jury and failing to report abuse, issued a statement Monday saying that the change undermines the credibility of the incident's witness, Mike McQueary, a Penn State graduate assistant at the time.

"Now, it is clear that Mike McQueary was wrong in so adamantly insisting that the incident happened the Friday before spring break in 2002," said Caroline Roberto and Tom Farrell in the statement. They go to say, "Whether or not Mr. McQueary's insistence was the result of faulty memory, or questionable credibility, there is no dispute that the statute of limitations has expired on count two (failure to report abuse), and it will be dismissed."

But according to Lisa Wayne, president of the National Association of Criminal Defense Lawyers, the change isn't likely to derail the prosecution's case, though it certainly creates an opening for Amendola to poke holes in McQueary's story.

"The law gives the government a lot of room to maneuver regarding a time period within which the alleged conduct may have occurred," Wayne wrote in an email to Crimesider. "The government commonly argues it is difficult to pinpoint a specific time due the age of a child, trauma, etc."

"But," she continued, "It will certainly add to the argument for the defense that the delay in time has compromised the integrity of the investigation," especially considering that the witness, McQueary, was an adult at the time of the alleged incident.

McQueary told a grand jury that he witnessed Sandusky sexually assaulting the boy around 9:30 p.m. on March 1, 2002. He said he informed head coach Joe Paterno the next day about what he saw, and it was Paterno's alleged inaction that ultimately led to his firing last year.

Sandusky is facing more than 50 counts of alleged sexual abuse of 10 minors over a 15 year period. His trial is expected to begin next month.

McQueary's father, when contacted by the Centre Daily Times, declined to comment on the date change, citing the gag order.

Scranton defense lawyer Joseph D'Andrea told the Associated Press the change may not affect the prosecution, assuming all other relevant facts remain consistent.

"If all the other facts match up to be identical, I think it's just an error without any harm for the prosecution," D'Andrea said. "However, if there are other inconsistencies, it gives the defense a reason to create some doubt about the credibility, sincerity, honesty and true recollection of what McQueary had to say."

And credibility, says Pennsylvania defense lawyer Shawn Curry, is key.

"Without physical and other direct evidence, this case is won or lost on credibility," Curry wrote in an email to Crimesider. "With this change, the prosecution's case just lost a measure of credibility."

Complete coverage of the Penn State sex abuse scandal on Crimesider

  • Julia Dahl

    Julia Dahl writes about crime and justice for CBSNews.com

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