Posted: Friday November 11, 2011 3:27PM ; Updated: Friday November 11, 2011 5:16PM
Michael McCann
Michael McCann>SPORTS LAW

Sandusky grand jury presentment doesn't tell the whole story

Story Highlights

Grand jury's job: determine if enough evidence existed to charge Sandusky

Grand jury proceedings differ from trials in that they are unabashedly one-sided

The findings of fact in Sandusky's case thus offers an incomplete narrative

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The grand jury's findings that led Jerry Sandusky to be charged with sex crimes against children is brutal; more information will come out at trial.
The grand jury's findings that led Jerry Sandusky to be charged with sex crimes against children is brutal; more information will come out at trial.
AP

The public reaction to the Penn State scandal deservedly shows outrage for the heinous nature of the crimes allegedly committed by Jerry Sandusky and the shockingly ineffectual, perplexing and contradictory responses alleged of Joe Paterno and Mike McQueary, among others, in connection to the case. As I discussed on Wednesday, Paterno and McQueary both face the possibility of criminal charges and civil liability if they covered up criminal activity or knowingly lied to the grand jury. Former Penn State athletic director Tim Curley and former senior vice president of business and finance Gary Schultz have already been charged with crimes, and Penn State as an institution is highly vulnerable to civil lawsuits brought by Sandusky's alleged victims.

It should be acknowledged that the public reaction, and accompanying commentaries, are largely based on a grand jury's findings of fact, also known as a grand jury presentment. What exactly is this document, and does it paint a complete, verified picture of what transpired?

The grand jury's findings of fact represent how 23 men and women, who were convened by the Pennsylvania government to investigate potential criminal wrongdoing of Sandusky and those who purportedly enabled him, ultimately viewed the evidence and sworn testimony presented to them. In developing their findings of fact, the grand jurors were not tasked with deciding, beyond a reasonable doubt, that someone had committed a crime. Instead their duty was to investigate and simply determine if enough evidence existed for prosecutors to charge someone with a crime.

A grand jury proceeding is completely unlike a trial you see on television. You won't, in fact, be able to see a grand jury proceeding on television, or even read media accounts of what takes place. The proceeding is conducted entirely in secret. There is no public mention of anything related to the proceeding, including the proceeding's very existence. Grand jurors and prosecutors swear to secrecy; only persons subpoenaed to testify can reveal that they testified.

Grand jury proceedings are also different from trials in that they are unabashedly one-sided. They are run by prosecutors, who select which evidence to present and which witnesses to call to testify. Grand juries themselves can subpoena documents, but persons who may face criminal charges because of the proceedings have no right to challenge the implicating evidence, to offer exonerating evidence or to confront those who implicate them. Their attorneys are also barred from participating, though in Pennsylvania -- unlike in federal grand juries -- witnesses can bring attorneys to the proceeding and obtain advice from them.

Statements made by grand jury witnesses should be believed, because knowingly lying under oath to a grand jury constitutes perjury. But unlike in a trial, where lawyers for both sides can question witnesses, witnesses in grand jury proceedings are only able to answer questions asked by prosecutors. Choice of questions obviously impacts the kind of information, and depth of information, available for a factual record.

What does this mean? The findings of fact that we have all read and rightfully found repulsive offer a narrative that does not tell a complete story. That is especially true of the purported enablers of Sandusky, as they were not targets of the proceedings. Among the benefits of a trial is that from that forum we learn new facts and discover that certain assumptions are incorrect.

None of this is to say the popular view of Paterno will improve if Sandusky, or others implicated by the scandal, go to trial. In fact, a trial may raise new facts that cause us to view Paterno in a worse light, especially if he knew, or had reason to know, prior to the 2002 incident that Sandusky was a child predator. Along those lines, the circumstances of Sandusky's retirement as a successful 55-year-old coach in 1999 are clearly suspicious. The same is true of the baffling decision to allow Sandusky to remain affiliated with the school as a professor emeritus (with access to the football's team facilities, among other resources) until as late as last week. Sandusky somehow remained a part of the Penn State family despite repeated allegations that he committed sexual abuse on campus.

A trial, however, could clarify a number of excerpts from the statement of facts that have attracted a great deal of attention over the past week. Foremost, we may learn what McQueary actually told Paterno, whose grotesquely opaque description of a boy being raped in a shower as "something of a sexual nature" suggests that Paterno either did not know all of the details or intentionally withheld them. There is a big difference -- legally and morally -- between not knowing and not sharing.

A trial could also allow Paterno to answer questions from his attorney under direct examination (unless he pleads the Fifth Amendment to avoid self-incrimination and thus refuses to testify). Under direct, Paterno could explain himself in ways that he was probably unable to in the grand jury proceeding, where his lawyer could not ask him questions. Paterno may volunteer additional details that were not relevant to the questions asked of him during the grand jury proceedings, but that are nonetheless meaningful for understanding his questionable choices. For example, he could describe in detail what he reported and what efforts, if any, he made to follow up.

We still have much to learn about what happened at Penn State and the relationship between the school, its officials and Sandusky. Sadly, the story will probably only get much worse as the legal process develops. But we may learn new pieces of information that reshape how we assign blame and how we reconcile what appears to be immoral, almost inhuman decision-making by those we thought to be worthy of our respect and admiration.

Michael McCann is a sports law professor and Sports Law Institute director at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He also serves as NBA TV's On-Air Legal Analyst. Follow him on Twitter.

 
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