“I seen that black n—– yonder ruttin’ on my Mayella!!”
So testified Robert E. Lee Ewell in To Kill a Mockingbird. Back in the 1930s, such an allegation alone was enough to convict a black man of rape. In the book (as well as in many real life cases), his statement did convict the accused rapist Tom Robinson, despite the best efforts of Atticus Finch to persuade the jury to acquit him.
Even though the story was considered to epitomize American injustice towards blacks during the Jim Crow period, the irony is that there was more evidence against Tom Robinson than there is in the rape “report” considered by many to justify the media lynching of Joe Paterno. Tom Robinson’s victim was at least named. She — Mayella Ewell — identified herself in court, said she had been raped, and the eyewitness (her father) testified that he saw the “crime” being committed.
The accuser in the Paterno case (if in fact he can be considered that, for he has yet to make a formal accusation) has not named the victim, but only the perpetrator. But what many people are missing is that because there is no identified victim, there can be no legal case. It’s the way the system works.
It may sound shocking, but there was a better legal case of rape against Tom Robinson than there was or is in the 2002 rape allegation against Jerry Sandusky.
Yet despite the lack of an underlying case, Paterno is seen as guilty. Of what? Failing to report a crime which has never been shown to have occurred? A crime committed against a victim who was never found?
I am reminded of a criminal case on which I worked years ago. My client was accused of grabbing a woman and holding a knife to her throat. At least, that was what two witnesses claimed they saw. They called the cops and the cops arrested the guy. The problem was that the “victim” was gone. She had run away. Without her, there was no case, because there was no way to prove that this was an assault (or what had been going on). So the case was dismissed — by a very angry judge.
In the United States, in order to convict, there has to be proof beyond a reasonable doubt that a crime was committed, and that the defendant did it.
But everyone knows that, right?
MORE: Why are so many people reciting as if it is a fact that a boy who was never found or unidentified boy was “ten years old”? If someone told me that he saw a grown man having sex with a ten year old girl, a thirteen year old girl, a sixteen year old girl, or a seventeen year old girl, I would have different emotional reactions (the lower the age, the greater the culpability), but I would still want to know how the person telling me knew the girl’s age.
How did McQueary know the age of the boy? How can anyone tell? If he did not know, then why is his recital being accepted as a fact? It is not as if the boy’s age is an unimportant detail; it goes to the heart of criminal culpability. (In Pennsylvania sex with a minor under thirteen is a first degree felony.)
AND MORE: Glenn Reynolds’ link to this thoughtful and insightful post made me wonder whether I am guilty of “tribalism” for defending Joe Paterno. After all, the man is a family friend, and any friend would deserve my defense. Add to that the fact that I am a lawyer, so when I see what I consider faulty legal analyses, I feel obligated to speak up. Would I defend another football coach? Perhaps not. I do not consciously think of myself as belonging to any football “tribe”; in this case it becomes personal. If a member of my family (or, say, even a beloved co-blogger) were accused of a crime or other dastardly behavior, I would instinctively leap to their defense. Otherwise I could not live with myself. Loyalty is something I value highly, but I admit it is not entirely rational.
AND MORE: Dan Collins takes issue with the comparisons being made to the Catholic priests scandal. There are of course huge differences. Football is not religion, and college football coaches normally do not not work with children.
And I certainly hope that this does not lead to a movement to treat strong and athletic young men as children in need of protection!
AND EVEN MORE: Many thanks to Don Collins and Tod Kelly for linking this post in their discussions!
UPDATE: As to the continuing saga of Mike McQueary, it just keeps getting more and more bizarre. In an earlier post I mentioned that he had been relieved of duty and was protective custody. The latest news is that he is still on the Penn State payroll, and that the statement that he was in protective custody was — get this — a joke:
According to the Patriot-News, McQueary took part in a type of conference call Friday that included his replacement as wide receivers coach, Kermit Buggs, as well as the players he had been charged with coaching. During what was described by the paper as an emotional conversation, McQueary revealed to the group that he is “not your coach anymore. I’m done.”
That would seem to indicate that McQueary will not coach another game this season, something the school has yet to officially announce due in part to concerns over violating Pennsylvania’s whistleblower statute.
McQueary also revealed he’s in protective custody, and that he’s taking the liquid approach to the situation.
When players asked, “Coach, where are you? Can we see you?” McQueary responded, “No, I’m actually in protective custody. I’m not in State College.”
McQueary added that he was, “Double-fisting it,” meaning he was having two drinks at once.
Penn State announced Thursday that McQueary would not be in attendance at Saturday’s game against Nebraska due to “multiple threats” made against the assistant. A day later, it was announced that McQueary had been placed on paid administrative leave.
UPDATED 8:31 p.m. ET: Subsequent to our posting, the Patriot-News made some substantial changes to their initial report.
The reference to “double-fisting it” has been removed, as has the portion where McQueary talks about not being their coach anymore; changed the name of the new wide receivers coach to Terrell Golden; and added that “Sports Information Director Jeff Nelson said that McQueary was not in protective custody – that his characterization was not true, raising the possibility that it was an attempt at black humor that fell flat. If so, the players did not get the joke.”
Joke? Two fisting? Honestly, I couldn’t make this stuff up if I tried.
And according to a story linked by Drudge earlier, the known pedophile whose crimes lie at the core of the scandal, Jerry Sandusky, was still recruiting for Penn State as late as this past Spring:
(WSCR) According to a published report, former Penn State defensive coordinator Jerry Sandusky, who was arrested over the weekend on more than 40 counts of child sexual abuse, had been recruiting for Penn State football as recently as this past spring.
Adam Ah Ching, a senior linebacker at Greer High School in South Carolina, said that Sandusky actually visited him this past season as a recruiting ploy.
“He came to my last spring game going into my senior season. He liked how I moved, laterally, and how gifted I am,” said Ah Ching, ranked last year by ESPNU as the 26th linebacker prospect in the country.
In case anyone is wondering how such a thing could happen. Mike McQueary just happens to be the guy in charge of recruiting. As well as the guy being called a “whistle blower“.
Regardless of what Joe Paterno could have or should have done, this whole thing does not pass my smell test. I admit my bias as a friend of Paterno, but there are so many red flags that I cannot ignore them.
Remember, McQueary’s recent testimony to the grand jury (about what he said in 2002) is what brought down Joe Paterno, and caused the rest to face perjury charges.
McQueary stood to gain by Paterno’s removal, and I think he might very likely have seen an opportunity. Maybe more than one opportunity. (What’s with him being in charge of recruiting and sending out Sandusky, a man he claims raped an unknown child??? Again, bear in mind that nothing McQueary has said helps any rape charge against Sandusky, as there is no victim.)
As to credibility, either he told them about the anal rape in 2002 or he did not. They all say he didn’t, but he now says he did. Who is lying? Why?
It smells fishy beyond belief.
Especially when you consider how this has captured the public’s imagination. Anal sex is considered far more heinous than fondling or oral sex, and the younger the age of the boy, the more horrific it looks.
What everyone is talking about is the anal rape of a ten year old boy. A horrible, horrible, thing going well beyond the previous allegations. An atrocity all civilized human beings would condemn, and I simply do not believe Joe Paterno would have helped cover such a thing up. Yet he was fired for covering it up.
So I feel compelled to ask, what if it didn’t happen?
UPDATE (11/15/11): Sandusky says he only horsed around with the boy in the shower, and according to his attorney, the boy has confirmed that the alleged anal rape never occurred:
Penn State graduate assistant Mike McQueary told the grand jury that in 2002 he saw Sandusky sexually assaulting a naked boy he estimated to be about 10 years old in the locker room showers at the school’s football complex.
“He actually turned all the showers on and was actually sliding across the floor and we were, as I recall, possibly like snapping a towel or horse play,” Sandusky told NBC.
The incident didn’t occur the way McQueary described it in the grand jury report, Amendola said.
“What McQueary said he saw, we have information that that child says that never happened,” Amendola said.
Sandusky Banned
The grand jury found that McQueary told Paterno about the incident, though it doesn’t detail what Paterno was told. Paterno and McQueary met with Curley and Schultz, who reported the matter to Spanier. Sandusky was then banned from bringing children from his foundation into the football building, according to the grand jury report.
Once again, for reasons I explained in an earlier comment, I am extremely skeptical that a man Sandusky’s size could possibly have anally raped a ten year old who was standing in the shower as McQueary alleged.
…if you read about the other victims, anal intercourse is not the man’s pattern. Even with the ones he spent lots of time with, like Victim 1 with whom had sex many times. The pattern shows Sandusky committing acts of fondling while showering, as well as sexual horseplay and oral intercourse. Serial pedophiles have a pattern, and the fact that he didn’t have anal sex with his frequent contacts raises questions about the accuracy of McQueary’s story.
What heightens my suspicion is that if we believe McQueary about the boy’s age being ten, how on earth could he be getting anally penetrated in the shower “with his hands up against the wall”? Consider simple laws of physics. Sandusky is a very tall man (a former defensive end) who towers over the arresting officers in the photos I’ve seen. He has to be at least 6’4? maybe taller. How tall is a ten year old boy? How could he sodomize a boy that age unless he got down on his knees? It’s mechanically impossible unless the boy was very tall, which renders McQueary’s age estimate suspect.
Is it possible that McQueary heavily embellished what he saw, or even made the story up? Why? Might he have wanted to create a mess for Joe Paterno?
It is beginning to look that way.
Not only is the “anal rape of a ten year old boy” in the shower what got the public’s attention, it got Joe Paterno fired. Whether it was made up years later never seems to occur to anyone.
I simply do not believe the boy was anally raped. Nor do I believe Paterno was told anything about an “anal rape” in 2002.
Yet in the public’s imagination, he was fired for covering it up.
Comments
13 responses to “They had a better case against Tom Robinson”
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You need to read the grand jury report. The witnessed rape is only one of 8 victims in the report. They have victims. Long term victims repeatedly raped in the athletic building (specifically moved to the sauna when the new building opened), at the team hotel during home games, and on the road. Texas is opening an investigation.
Reports are the tip line is finding more victims. Sandusky created his “charity” in 1977. There could be hundreds of victims from the last 30 years.
Nothing has been proven in court yet but it is increasingly looking like Paterno and Penn State had willful blindness for decades.
What? I was under the impression that the “victim” was scarred for life. No one has come forward? There is not even a lawyer representing the victim?
I really haven’t been following that closely (can you tell?) but this is off the wall nuts.
Reminds me of the Day Care witch hunts of a few decades back.
Or in Europe – “the Jews ate a baby – cooked it for Passover.”
JKB,
I have changed my mind again. Time to get back to work.
Maybe I am missing something, but isn’t the reason why people report their suspicions to the police in order for the police to investigate and determine whether a crime has been committed?
“Yet despite the lack of an underlying case, Paterno is seen as guilty. Of what? Failing to report a crime which has never been shown to have occurred?”
Do I, as a concerned citizen, have to do my own investigation until I have proof beyond a reasonable doubt, before I report it to the police? It doesn’t need to have been shown to occur to report it to the police.
Also, as to the age of the child, McQueary testified that he “estimated the age of the child tobe about ten.” This would be the child McQueary testified he saw getting raped.
I have read and reread the Grand Jury report, and the more I reread it, the more I am becoming skeptical of McQueary’s account of the anal rape. Victim 2 is the unidentified boy McQueary estimated as 10 and claimed to see being anally raped in the shower.
***END QUOTE***
“He saw a naked boy, Victim 2, whose age he estimated to be 10 years old, with his hands up against the wall, being subjected to anal intercourse by a naked Sandusky.”
***END QUOTE***
Yet if you read about the other victims, anal intercourse is not the man’s pattern. Even with the ones he spent lots of time with, like Victim 1 with whom had sex many times. The pattern shows Sandusky committing acts of fondling while showering, as well as sexual horseplay and oral intercourse. Serial pedophiles have a pattern, and the fact that he didn’t have anal sex with his frequent contacts raises questions about the accuracy of McQueary’s story.
What heightens my suspicion is that if we believe McQueary about the boy’s age being ten, how on earth could he be getting anally penetrated in the shower “with his hands up against the wall”? Consider simple laws of physics. Sandusky is a very tall man (a former defensive end) who towers over the arresting officers in the photos I’ve seen. He has to be at least 6’4″ maybe taller. How tall is a ten year old boy? How could he sodomize a boy that age unless he got down on his knees? It’s mechanically impossible unless the boy was very tall, which renders McQueary’s age estimate suspect.
Is it possible that McQueary heavily embellished what he saw, or even made the story up? Why? Might he have wanted to create a mess for Joe Paterno? Or might he have wanted to ingratiate himself with Paterno? (He was promoted soon after this incident.) Or, might he have told no one about anal rape until recently, in order to accuse them of covering it up? All the Penn State officials — including Paterno — say that McQueary told them nothing about anal rape in 2002. One interpretation is that they are all lying and covering up, but is it not possible that McQueary never told them then what he is saying he told them now?
So yes, I have read the report, and I am not seeing evidence of repeated anal rape in the athletic building or anywhere else. The report presents a compelling case against Sandusky, but in the case of Victim 2 (the only incident connected to Paterno’s firing), it raises suspicions.
[…] Schele of Classic Values weaves through the Penn State controversy and passionately defends his turf while still trying to […]
Cast doubt on the grand jury report all you like, Eric, but regardless of what actually transpired Paterno himself testified that McQueary reported to him that he had witnessed “Sandusky… fondling or doing something of a sexual nature to a young boy”. He didn’t have to know the identity of the boy, whether McQueary was completely accurate in what he claimed to have seen, etc. No one says he had a duty to investigate the alleged crime but he sure as hell had a moral obligation to report it to the folks whose job it is to do so: the police. He failed miserably.
With that headline I thought this post was going to be about Hermann Cain…
I think this is a case of those in positions of responsibility being made to wear it. The two fired weren’t fired for committing the alleged acts, but for allegedly turning a blind eye to alleged reports of those acts.
The correct response would have been suspensions and investigations. Of course, even the reports are alleged.
The governors of Penn State needed to be seeen to be taking action themselves, in case they be implicated.
[…] Paterno and got several other Penn State officials indicted (and whose story of the anal rape and constantly shifting statements convince me that he is not credible), has changed his story yet again. Mike McQueary, the Penn […]
Eric: I feel like I’m intruding. (I don’t visit often, and rarely comment here.)
But this particular line of questioning about the Paterno/McQueary/Sandusky incident is interesting. It has the part of my mind that enjoys detective stories and police procedure TV ticking.
If the facts as alleged are true, then Sandusky deserves what Paterno is getting from the media. I’m not sure if there’s enough evidence to outright fire Paterno, but there is evidence to put both Paterno and McQueary on suspension. (Seriously…was McQueary done once he reported to his superiors? Why didn’t he go to Campus Police?)
If not all the facts are true, then what explains the actions of all involved?
One simple thought came to mind: if McQueary saw an act that wasn’t anal intercourse, but was fondling (or he suspected fondling had been going on, but the fondling was not happening while he watched), then the rest of the described actions make sense.
That is, McQueary’s tale of (1) going home, (2) discussing with his father, (3) going to Paterno makes sense.
Paterno’s actions of (4) reporting to superiors makes sense, as does his non-actions of (5) not encouraging McQueary to call Campus Police himself and (6) not making his own report to Campus Police.
Also, this provides an answer to the stipulation (7) that no other abuse charge against Sandusky involved anal intercourse.
At this point, I have counted events that make more sense if McQueary saw fondling (or heard something suspicious, but didn’t see fondling) than if he saw anal intercourse.
I can’t say I’ve exhaustively scanned the report or the news for any other piece of testimony which might be a lie. But I suspect that lying about this one item and telling the truth about the rest is easier than lying about any other part of that chain of events.
Now, about motivation:
Is there suspicion that McQueary is replacing Sandusky in the Athletic Dept? That would lead me to ask whether McQueary was willing to lie/exaggerate to hurt Sandusky.
However, I don’t have enough information to test whether this tells us anything about the McQueary-and-Paterno relationship. I don’t know if McQueary was aware that his allegation might have harmed Paterno.
I also don’t know how predictable the actions of the Penn State board were, and whether McQueary might have been aware of the possibility that Paterno might lose his job.
The story has the potential to be a complicated mess of wrongs done by all involved, rather than a simple cover-up.
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