Jerry Sandusky attorney Al Lindsay speaks
The prosecutors were there. The defense attorneys were there. Jerry Sandusky was sitting in the courtroom, watching his fate unfold.
But this wasn’t the 2012 trial that sent Sandusky to Greene state prison for 30 to 60 years. It was an evidentiary hearing for Sandusky’s Post-conviction Collateral Relief Act petition, and his attorneys weren’t defending him but trying to get him a new trial.
And the prosecutors were on the witness stand.
Frank Fina and Joe McGettigan led the team that secured a conviction on 45 of the 48 counts of child sexual abuse against the retired Nittany Lions defensive coordinator. On Tuesday, they answered questions about their actions and decisions in that case.
McGettigan, at least, was not happy about it. He and defense attorney Al Lindsay exchanged several exasperated questions and obstinate answers before McKean County Senior Judge John Cleland intervened.
At the heart of the examination was a look at the identity of the man some believe to be Victim 2, the infamous boy in the shower whose story became a symbol of the whole scandal.
Victim 2 did not testify at trial. Of the 10 boys central to the charges, only he and Victim 8 did not take the stand. Lindsay has built a chunk of his PCRA petition on McGettigan’s closing argument that said Victim 2 was “known only to God.”
But a man who said he was Victim 2 did come forward. He was represented by attorney Andrew Shubin, and while he initially told both investigators and Sandusky’s original defense attorney Joe Amendola that he had not been abused, he later changed his story and said he was the boy in the shower.
“Do you believe (this man) was Victim 2?” Lindsay asked.
“I did not believe that then and I do not now,” McGettigan said.
McGettigan and Fina both attributed that decision to the changing nature of the man’s story, as well as the fact that, when asked to draw a diagram of the Lasch building showers, the locker room he drew was not a match for the scene of the alleged crime.
Lindsay did get both prosecutors, as well as Monday’s law enforcement witnesses, to acknowledge that witnesses do have inconsistencies to their testimony over time.
Fina said the team had to evaluate the stories from all of the witnesses.
“Many of these young men had profound issues in their life. Many had been damaged ... abused,” he said. “Many had given dramatically inconsistent statements that made them unusable in this case. ... I made that decision.”
Both also pointed to Shubin as a stumbling block.
Fina said the man’s details about the case only arose after information about assistant coach Mike McQueary’s grand jury testimony became public.
“That was a factor in our decision,” he said. “He essentially mirrored what Mr. McQueary testified to.”
McGettigan was more direct.
“Mr. Shubin was unhelpful. In fact, he was an impediment,” he said.
Shubin represented the man and several others in their civil settlements with Penn State. The potential financial motivation for testimony was another factor Lindsay had raised in his PCRA petition.
In statements made outside the courthouse after the hearing, Lindsay said he believed the victim testimony was “factually incorrect,” but stopped short when asked if he was accusing the men of lying.
“There is substantial expert testimony out there that people can actually believe something that didn’t happen,” he said, referring to therapy coupled with police questioning creating a situation where their memories changed.
Fina, McGettigan and another Office of Attorney General former employee, Jonelle Eshbach, also testified to investigations regarding possible leaks regarding the grand jury, especially surrounding former Centre Daily Times and Patriot-News reporter Sara Ganim’s initial articles about the case.
“One of the great misconceptions is that grand jury leaks happen all the time and they are all illegal leaks,” Fina said.
Fina is prominently involved in another Pennsylvania leak case, that of now-resigned Attorney General Kathleen Kane.
“I was never able to determine if the leak (in Sandusky’s case) was proper or not,” he said.
Ganim did not appear Tuesday, however Cleland said more evidentiary hearings could be called. Lindsay said afterward that a possible appearance by Ganim was “under discussion.”