Thursday, November 24, 2011

The Altoona Mirror: Examining the Legal Fallout from McQueary Email

Below is a pretty thorough legal analysis by William Kibler of The Altoona Mirror with regard to the recent email by Mike McQueary which seems to contradict his testimony before the grand jury investigating the Penn State sex scandal and cover-up.

Kibler writes, that McQueary may have damaged his credibility this week as a prosecution witness in the Jerry Sandusky child sexual abuse case, when he claimed he contacted police after allegedly witnessing Sandusky raping a boy, according to legal experts.

The claim seems at odds with the grand jury presentment in the case and with local police agencies, which said McQueary didn't report the rape in 2002.

McQueary's claim, made to a friend in an email and released to The Associated Press, "absolutely" damages his credibility as a witness, said Thomas M. Dickey, an Altoona defense lawyer.

Other legal experts aren't so sure, writes Kibler.

McQueary's claim was the good news for Sandusky's defense this week - after the bad news of Sandusky's televised interview with Bob Costas on NBC, in which he admitted to showering with boys, Dickey said.

While Sandusky's admission gives ground unnecessarily, McQueary's claim is "a hole," an opening that the defense can exploit at trial, Dickey said.

"Pin him down, turn that one lie into 30 lies" by "pounding" for inconsistencies among all the scraps of communication the defense can find, he said. "Everything that person ever said or thought relative to that case."

But even one lie helps, reported Kibler.

"False in one, false in all," he said.

It's not surprising the opening came as it did, Dickey said.

"Usually when you find the good stuff, it's when people have their guards down, like an email to a friend," he said.

Defense lawyer Patrick Artur of Philadelphia was more circumspect.

The grand jury presentment isn't evidence, merely a summary of what the grand jury found, Artur said.

"That summary could well leave out a lot of specific information," former Blair County District Attorney William Haberstroh said. "You almost would need to see the transcript."

Whether the email statement contradicts McQueary's grand jury testimony depends on exactly what prosecutors asked him and how he answered, Haberstroh said.

If prosecutors didn't ask directly whether he went to police, it's not necessarily surprising he didn't volunteer the information, because prosecutors generally keep their questioning narrow and focused in grand jury proceedings, Haberstroh said.

They don't want to bring up extraneous issues that could get in the way of convincing the grand jury there's probable cause to recommend charges, Haberstroh said.

"So we don't know whether [McQueary's email statement] is contradictory or not," Artur said.

McQueary made his recent claim under duress. Media commentators have attacked him for not stopping the rape and not reporting it to police, based on the grand jury presentment, writes Kibler.

"He wanted to leave the impression he did something," Artur said. "That he didn't just whistle past the showers and keep on going."

But prosecutors and his own lawyer should tell him to "zip it," Artur said.

Likewise, it's natural for defendants to want to talk, but Sandusky needs to bide time until trial, Dickey said.

"If I were representing Sandusky, I would be sitting back watching them all unravel," he said.

The upcoming preliminary hearing will be an opportunity for the defense to gather ammunition to inflict further damage, generating lots of specifics it can exploit at trial for inconsistencies, Dickey said.

"You have to attack, attack, attack their credibility," Dickey said. "To show these people are lying, stretching the truth, exaggerating, whatever."

Those kinds of attacks can be fruitful, writes Kibler.

"The truth of the matter is that most people exaggerate, say things they don't mean, even say things that are not true, all the time," said John Burkoff, a law professor at the University of Pittsburgh.

And defense lawyers can turn an acorn into an oak tree, Artur said.

Marshaling witnesses to present credible testimony at trial in a case like Sandusky's is a path fraught with peril for the prosecution, Burkoff said.

The "scorching" coverage of the case may have given other victims the confidence to come forward to reveal abuse by Sandusky, whose community stature could have been intimidating before, he said.

But that coverage also might embolden false victims to come forward, he said.

If the prosecution isn't careful enough to cull them out, and if one gets into the witness group at trial, and the defense exposes that victim, it could jeopardize the whole case, he said.

Conversely, if there's an absolutely convincing case against one victim, the "spillover effect" can help convince the trial jury about the rest, he said.

In the grand jury presentment, the alleged 2002 rape stood out as probably the most convincing incident, so the doubt that may be cast by McQueary's recent email could be especially damaging, it seems.

"I'm willing to predict you're going to see more and more inconsistencies," Dickey said.

Still, a single exaggeration or lie - if such was the case with McQueary's email - is rarely enough to totally discredit testimony, Burkoff said.

McQueary's claim isn't going to destroy the state's case, Artur predicted.

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