Posted: Tuesday November 15, 2011 12:46PM ; Updated: Friday November 18, 2011 7:38PM
Michael McCann
Michael McCann>SPORTS LAW

How Sandusky interview could hurt his defense, Penn State

Story Highlights

Jerry Sandusky's interview with Bob Costas exposed legal shortcomings

Sandusky was unconvincing and admitted to inappropriate behavior

What could happen to JoePa, McQueary; Looking at Penn St. civil liabilities

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Attorney: Sandusky is innocent
Source: SI
Joe Amendola, attorney for Jerry Sandusky, tells CNN's Jason Carroll that his client is innocent.

SI VideoJerry Sandusky's interview Monday night with Bob Costas on NBC's Rock Center raises more questions as to what legal issues may emerge as this story unfolds. SI.com legal expert Michael McCann answers five key questions.

1. In terms of legal strategy, what did we learn from Sandusky's interview with Costas?

We learned that Sandusky and his attorney, Joe Amendola, are focused on making legal distinctions even if doing so requires Sandusky to make admissions of decidedly inappropriate, if not criminal, behavior. This was most apparent when Sandusky denied that he was a pedophile, but admitted to showering and "horsing around" with boys, as well as "hugging" and "touching" them, albeit in ways he claims to have been non-sexual. Even if we believe Sandusky that he did not commit rape, his comments could be interpreted as admissions of other sex crimes under Pennsylvania law, including the felony of institutional sexual assault (indecent contact by a youth development mentor) and the misdemeanor of indecent assault (indecent contact).

To further this tactic, Amendola, in a separate interview with CNN, attempted to distinguish between socially unacceptable behavior and illegal behavior. Describing his client as a "big overgrown kid" and an aging "jock", Amendola portrayed his client as engaging in conduct that would attract scorn as grossly inappropriate, but that did not rise to the level of criminal activity.

The problem with Sandusky's legal strategy is not only that a growing number of men independently charge that Sandusky raped them while they were children, but that also admitting to strange and lewd behavior with children would likely make jurors highly suspicious of him and more inclined to convict him of sexual assault. Put differently, it's hard to believe there is merely a misunderstanding between Sandusky's recollection of the facts and that of the alleged victims when Sandusky freely admits to showing terrible judgment.

The interview also reflects poorly on Penn State. Sandusky admitted to behavior that was far from discreet and was sure to attract the attention of others. Along those lines, did no one at Penn State find it disconcerting that Sandusky was showering with boys? Did any school official notice any unusual "touching" by Sandusky? Joe Paterno's insistence that "we were all fooled" seems even more hollow after Sandusky's interview.

2. Will Joe Paterno be charged with a crime? If so, when?

The grand jury will continue to look into what happened for an undisclosed period of time and additional charges stemming from the investigation could be brought against persons who have thus far avoided charges. For that reason, though Pennsylvania Attorney General Linda Kelly says Paterno (who has retained a criminal defense attorney) is not a target of the investigation, he, like assistant coach Mike McQueary and others, could become a target later. Put another way, they have not been cleared of wrongdoing. Their unresolved status may last for a while, as grand juries in Pennsylvania are impaneled for 18 months and can be extended by an additional six months. It is unclear when the current grand jury's investigation commenced, but it appears to have begun sometime in 2009, after a 15-year-old boy in Clifton County told authorities that he was the victim of inappropriate contact.

Then again, this is not the first grand jury to investigate Sandusky. Nils Frederiksen, the acting communicating director for Kelly, tells SI.com that this is the second consecutive grand jury to investigate Sandusky. It is thus possible that grand juries have been looking into Sandusky for two or three years, and possibly predating the allegations brought by the 15-year-old boy in 2009. If true, that makes Penn State's decision to keep Sandusky affiliated with the school with an office and significant access to the football team, seem even more dubious.

3. How can McQueary now say he tried to stop Sandusky from allegedly raping a boy in 2002?

According to the grand jury's presentment, McQueary's response to witnessing Sandusky rape a boy in a shower in the Penn State locker room was to leave immediately and to call his father, who in turn told McQueary to tell Paterno. Although McQueary likely satisfied his legal obligation to report the incident, many question whether he failed a moral obligation to stop the rape, such as by physically confronting Sandusky and rescuing the boy or at least immediately calling the police.

In an e-mail to former teammates on Monday, McQueary implies the presentment vastly understates his response: "I didn't just turn and run. I made sure it stopped ... I had to make quick, tough decisions." His e-mail doesn't specify how he stopped the act, but this account appears to contradict the grand jury's findings of fact, which say that McQueary "left immediately, distraught" after seeing the boy being assaulted. The findings of fact make no reference to McQueary in any way trying to stop the assault.

There are at least two explanations for the discrepancy.

The first is that McQueary is simply lying in his e-mail, which was not made not under oath and thus poses no risk of perjury, in order to rehabilitate his image. McQueary, who Penn State has placed on administrative leave and who has received death threats, may believe that he needs to tell a different story in public in order to save his career.

While this explanation is possible, McQueary likely wouldn't e-mail lies because now the grand jury may be inclined to go back and revisit McQueary's sworn testimony and ask him to testify again. Recall that Penn State athletic director Tim Curley and former senior vice president of business and finance Gary Schultz have been charged with perjury for knowingly lying to the grand jury. Also, should he eventually testify in Sandusky's trial, McQueary would be again under oath and would have to explain why his grand jury testimony and e-mail proclamations are at odds.

A second and more exonerating explanation concerns the information-gathering function of the grand jury. The grand jury's investigation is focused primarily on alleged sex crimes committed by Sandusky and not the roles played by others in failing to stop those crimes. Questions posed to McQueary, Paterno and others in the grand jury proceedings have been framed to elicit the most amount of information about Sandusky and his alleged victims, and no one else. The findings of fact thus retell what happened from the current vantage point of jurors who have been charged with looking into possible sex crimes committed by Sandusky.

In contrast, if the investigation had centered on McQueary, he likely would have been asked differently worded questions. In answering the questions he received, McQueary may have omitted details that could have enhanced his image, but were not directly relevant to the question being asked.

4. If Paterno is cleared, could he have legal recourse against Penn State for firing him?

Yes, although a so-called "whistleblower" claim -- where an employee or former employee claims that he was punished by his employer for "blowing the whistle" on the employer's wrongdoing -- would be difficult to prevail upon.

Working in Paterno's favor, the presentment makes clear that Paterno immediately reported the 2002 shower incident to Curley. Whether Paterno was entirely forthcoming in his reporting remains a question, but assuming he was, he would have complied with his legal duties under the state's Child Protective Services Act.

Under the state's Whistleblower Act, employers cannot fire employees for making good faith reports about wrongdoing. Paterno could argue that Penn State wrongfully terminated him for reporting to Curley about child abuse allegations that took place at Penn State and that potentially expose Penn State to liability. If Paterno succeeded, he would be entitled to damages and potentially reinstatement of employment.

The state's Whistleblower Act, however, allows the defendant to show there were other, legitimate reasons for the employee's firing. In the case of Paterno, Penn State could argue that he was not fired for reporting Sandusky's alleged child abuse, but for failing to detect and act on Sandusky's alleged wrongdoing at an earlier date and for the embarrassment the scandal has caused Penn State. Schools, moreover, are accorded wide deference under the law in the hiring and firing of coaches.

5. Is Penn State insured against potential civil liability?

Penn State likely has purchased substantial insurance policies to cover liability for successful tort claims or settlements against the school. Alleged victims of Sandusky could sue Penn State on a number of grounds, including for failing to supervise Sandusky -- who though he retired as a coach in 1999 remained part of the school until about 10 days ago -- and for failing to train their employees to effectively respond to sexual assault of children. These and related claims are based on the concept of vicarious liability (or "respondent superior" in the employment context), meaning liability for an employer because of criminal or tortious actions committed by an employee.

Even though Penn State could argue that Sandusky's role at Penn State was merely ceremonial and that his alleged crimes were so beyond the scope of his role that the university should not be held vicariously liable, civil claims brought by victims are likely to be settled long before they go to court.

For one, Penn State would have an incentive to avoid high-profile trials that would likely occur one or two years from now. Those trials would remind everyone of the scandal and further damage Penn State's image. Penn State could also lose on the law because if school officials were on notice that Sandusky may be a child molester, it was seemingly foreseeable that he would commit sexual assault on campus. For that reason, the university could be held vicariously liable.

The wording of Penn State's insurance policies would likely prove pivotal as to whether Penn State would be covered by insurance in paying the victims, who could receive tens of millions of dollars. While insurance policies normally cover negligent and reckless behavior by employees, those policies are typically more limited when employees commit intentional torts, including sexual assault.

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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