Monday, December 12, 2011

Penn State: The Preliminary Hearing is Crucial

As a former two term Pennsylvania prosecutor and defense attorney, I have learned that a preliminary hearing can be one of the most crucial stages of a criminal prosecution. The manner in which the prosecution manages the preliminary hearing can have long term implications for a successful prosecution.

During tomorrow’s preliminary hearing for Jerry Sandusky with regard to the Penn State sex scandal and cover-up the Commonwealth of Pennsylvania must present a prima facie case--they must show enough evidence that a crime has been committed and that the defendant is most likely the one who committed the crime.

Tomorrow can be a significant day in the preparation of Sandusky’s defense, as well. The more witnesses the prosecution calls the more Sandusky’s attorney, Joe Amendola, can cross examine those victims and witnesses.

Take the prosecution’s only disinterested witness, Mike McQueary. We have learned that he sent an email that is apparently inconsistent with his grand jury testimony. We have also learned that he told a family friend a story that is neither consistent with his grand jury testimony or his email.

According to the Harrisburg Patriot-News, McQueary told Dr. Jonathan Dranov, a family friend, that he had heard "sex sounds" and a running shower before a young boy peered around the corner of the shower's stall. McQueary told Dranov that he then saw an adult arm reach around the boy's waist and pull him out of view, Dranov told the grand jury, according to the Patriot-News. Sandusky left the shower in a towel seconds later.

Because McQueary said he had not personally witnessed an assault, Dranov said he advised McQueary to report the incident to his superiors at Penn State, but that he should not worry about informing the police, according to ESPN.

McQueary testified he told AD Tim Curley and University Vice-President Gary Schultz graphic details about a sexual assault.

On the other hand, McQueary told a friend in an email that he stopped the alleged rape and discussed it with police, something a source familiar with the state's investigation confirmed with ESPN.

McQueary testified before the grand jury that after witnessing the alleged assault, he left the building, called his father and the next day told head coach Joe Paterno what he saw.

In another email reported by NBC News, McQueary told friends that he did the right thing. "I didn't just turn and run ... I made sure it stopped ... I had to make quick tough decisions," he said in the email, according to the report.

Attorney Amendola must be chomping at the bit to get McQueary to give us yet another version. The prosecution must limit Amendola’s ability to go after McQueary.  In fact, I would not call McQueary as a witness at tomorrow's hearing.

As a prosecutor I would provide the minimum amount of evidence to get this case bound to the Court of Common Pleas for trial. For a prosecutor—less is more.

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