Eric Thomas: Conflicting Statements Threaten The Penn State Case

I hope, beyond all hope, that Jerry Sandusky is completely innocent of all charges. I hope that he is simply a creep and not actually a pedophile. I hope the victims were coerced and cajoled into accusing the former defensive coordinator. I hope Sandusky is just the creepiest guy in the history of the eastern seaboard. I hope this because he is not going to jail. You can have a witness parade right through the Shields building on Penn State campus, and it doesn't matter at all.

This is unfortunate because today's New York Times chronicles exactly how this matter was swept under the rug. In the age of fast food journalism that bases most of its radiation off pure conjecture, the Times article methodically constructs a picture of the 18 month investigation that led to last weeks' charges. In the article, the case is made that the rumors extended far beyond Happy Valley, into the halls of college football throughout the country. I have been suspicious of other stories, but the Times article is extremely well sourced, and a shining example of responsible journalism.

The Times article is a terrific read, and I recommend it. You can also line your bird cage with it, because it's irrelevant now. You can thank Mike McQueary.

The cake is baked, folks. It's over. McQueary sent an email to a friend, saying that he did attempt to stop the assault in the shower, then contacted police. That friend released the email to the press. Game over, and it doesn't matter at all if Sandusky is guilty or innocent. As far as I can count, McQueary has now told three different versions of the shower assault story.

There is the one in the grand jury testimony, (apparently extracted from him in the parking lot of the Penn State athletic facility) the "sanitized version" of the story McQueary told Paterno, and then there is the version he emailed to a friend. That's three versions. A competent defense attorney only needs two if he wants to establish reasonable doubt. A third story means they might drop the charges before taking this to trial. Even worse, he has been caught lying on record. Both local and campus police have no record of McQueary contacting them.

I have heard people squeaking out excuses, spitting out nonsense like, "It's only an email! So what?!" These people are apparently not aware that email is the new smoking gun in the information age. Every email is admissible into court as evidence, with no exceptions. McQueary's email will go in front of the jury, and will plant reasonable doubt into the mind of an impartial jury. Couple that with the information in the Times piece that the victims were reluctant to testify, and this thing is over.

When prosecutors tell witnesses not to talk about the case, they are not just launching a smoke screen. They are not attempting to keep secrets; they put the witnesses under gag for exactly this reason. Eye witness testimony is unreliable, often easy to impeach under cross examination. But when the witness makes statements that contradict the testimony given in the indictment, the testimony often is thrown out.

Without McQueary's testimony, this looks like a much, much different case. The janitor that claims he saw something cannot give testimony as he is confined to a nursing home and beyond the mental faculty to participate in questioning.

I hang part of this on the mob mentality, the conflagration that erupted nationally last week. There were plenty of voices that harangued Mr. McQueary for not intervening on the attack in the shower. He felt the heat, and yelped to a friend.

That squeal of mercy is the reason Sandusky will walk. The rest of the blame rests on McQueary's head. I am not sure that I believe anything out of his mouth anymore, but if he actually walked past a rape in progress, then made contradicting statements when the police were trying to put Sandusky away for his crime, he is absolutely unforgivable.

It's dangerous to give opinions that hinge on absolutes, but I follow a lot of these cases. Conflicting statements have sunk cases larger than this. It's deadly in this case because there is absolutely no physical evidence. If Sandusky is convicted it will be because of evidence that has not been made available to the public.

History will be harsh on McQueary, and that is fair. McQueary could have done something to help the victim and he failed … twice.