In writing about the case of the former Centre County District Attorney, Ray Gricar, I have been, at points, critical of both of his successors. Today it will be the decision of Mr. Gricar, the one for not prosecuting the Penn State assistant football coach, Jerry Sandusky, in 1998.
After watching Mr. Sandusky’s television interview, which was similar, though not identical, to the statements Mr. Sandusky allegedly made at the time, former Philadelphia District Attorney Lynn Abraham said:
"Mr. Sandusky goes on worldwide television and admits he did everything the prosecution claims he did, except for the ultimate act of rape or sodomy? If I were a prosecutor, I'd be stunned. I was stunned, and then I was revolted." 1
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The New York Times, quoting a source close to the investigation, noted that there was a thorough investigation by the University Police; they had a 100 page report created around that time. They noted:
“According to people with knowledge of the current Sandusky case, the district attorney’s decision in 1998 was a close call, even with the evidence the campus police had.” 2
National Public Radio reporter Tom Goldman reported, with unattributed sources to the University Police and the District Attorney’s Office that the police report was “very thorough, down to the minute.” Mr. Goldman also said:
“Sources remind us the '98 incident as detailed in the grand jury report involved contact with an 11-year-old, but no sexual activity. Gricar, who we can't talk to because he disappeared several years ago and is presumed dead, may have felt it was a close call but that sexual abuse charges might not stick.” 3
Mr. Gricar’s decision not to prosecuted Mr. Sandusky was more than a close call; it was a bad call, a catastrophically bad call if the charges are true. It was quite legal for him to make and not any kind of abuse of his discretion. It was also hugely out character for a brilliant attorney, who prosecuted cases that were not politically beneficial to him (sometimes even in election years) and seems, from both the record, and comments from friends and colleagues, not be the type of district attorney to have caved to a high profile defendant. Something does not fit.
We know, from the presentment, that the former Centre County District Attorney Ray Gricar investigated an incident in 1998 involving two victims, Victim 6 and B. K., and then did not charge Mr. Sandusky. We also know the grand jury, without B. K., who is on active service in the military and overseas, brought 11 charges against Mr. Sandusky regarding the 1998 incident. 4
We also know that there was no ethical bar that would prevent Mr. Gricar from filing charges. The rules in Pennsylvania require “probable cause” to file a prosecution, not even a reasonable likelihood of winning.5 It is hard to argue that this very low standard was not met.
We don’t know why Mr. Gricar did not file charges in 1998. We also know that in 2005, Mr. Gricar disappeared, so he can’t give us answer. That has not stopped people from speculating, am I’m about to join them, a bit. I won’t reach a conclusion, but will give a preference.
One of the people speculating was Robert W. Buehner, Jr., the outgoing Montour County District Attorney. He didn’t like my blog last week and sent me an e-mail, but the point he raised in it, he also raised on the Fox cable show Justice With Judge Jeanine.6 That point was that Mr. Gricar could not prosecute because Mr. Sandusky did not admit that the acts he committed gave him “sexual gratification,” and therefore, it wasn’t a full confession. Well, one charge does, the misdemeanor charge of Indecent Assault of a Person Less than 13 Years of Age does require the act to be “the purpose of arousing sexual desire in the person or the complainant,”7 in this case an underage child. The other ten 8 do not, necessarily.
There are four charges of Corruption of Minors 9 and two of Endangering Welfare Of Children 10 all misdemeanors, but none of those have “arousing sexual desire” clause or any kind of sexual intent clause.
Then there are four felonies related to the 1998 incidents, all Unlawful Contact with Minor.11 All can have the “arousing sexual desire,” but there can be other grounds, including “open lewdness,” which has a definition in statute12. The alleged actions of Mr. Sandusky might constitute “open lewdness,” though I’ll leave the supposition to those more learned than I. However, even without an admission of “arousing sexual desire” it still might be able to prove Mr. Sandusky guilty.
So, did Mr. Buehner attempt to spin the story, leaving out most of the charges, to lessen the impact on the reputation of his old friend? I would hope not and I really don’t think he would. Mr. Buehner cited a question from Victim 6 mother question from the presentment to Mr. Sandusky; the question was if Mr. Sandusky had “sexual feelings” when he hugged the victim.7 He thought that either the police or Mr. Gricar prompted her to ask it. He then jumped to the conclusion that only if Mr. Sandusky answered yes could be charged with any crime; that was a mistake. Yes, a bright guy, and experienced attorney maybe missed some stuff. Was he so focused on the mother’s question and he missed the rest?
Might Mr. Gricar have missed the same thing? Was he so focused on the answer to that one question that he missed the rest? Mr. Gricar was bright, but bright people do make mistakes.
Let’s take a look at this. Victim 6’s mother asked Mr. Sandusky, according to the presentment, “asked Sandusky about showering with her son, what effect it had with her son, whether Sandusky had sexual feelings when he hugged her naked son in the shower.” A number of people, including Mr. Buehner, thought the comment may have been prompted by the police or Mr. Gricar. I really cannot imagine a mother asking someone who may have acted inappropriately with her child about his feelings. I would call this possibility probable.
The question just focuses on one misdemeanor charge, even though the Attorney General filed seven misdemeanor charges on the same incident. Was Mr. Gricar so focused on having a strong case on this charge that he missed the possibility of charging Mr. Sandusky on the others? Mark Smith, then, as now, the First Assistant District Attorney, indicated that Mr. Gricar did not talk to the rest of the staff about the situation.13 It’s easy for me to see how a specific charge would apply to the situation once someone cites the specific charge. It would be harder, a lot harder, for me to look at the actions, then go to multi-volume set of statute books and see which one applies. Simply put, Mr. Gricar could have had tunnel vision and just focused on one aspect of one charge. Was this simply a cognitive failure on Mr. Gricar’s part, an example of a bright guy making a mistake?
Then there are the felony charges of Unlawful Contact with Minor. This, a legally more severe charge, should have been the one Mr. Gricar would looked at first. The law was adopted just five months prior to the second meeting of Mr. Sandusky and the mother of Victim 6. The updates to statute books may not have been on-line in 1998. The law, once enacted, would have to be printed and mailed; it would be distributed, usually inserted in the back of the appropriate book. Mr. Gricar might have missed it or it might not even had had access to it.
There is also the possibility, also alluded to Mr. Buehner, who said, “You don’t want to go after someone high profile unless you have a compelling case.”14 In 1998, Mr. Sandusky was one of the prominent citizens of Centre County, probably within the top fifty. He was also seen as the heir to the iconic Joe Paterno, and was a resident of Centre County much longer than Mr. Gricar. Mr. Gricar never prosecuted anyone this respected.
Could Mr. Gricar have looked at the case, and decided that, even thought it was strong, he could never win, facing a defendant the “legendary Jerry Sandusky?” Did he then pull back and give this presumed soon to be icon soon a pass? There wasn’t evidence of Mr. Sandusky’s alleged serial pedophilia, so the impact would have been much less. That argument gets slightly weaker after Mr. Sandusky was told that he would not be the next head coach, and retired, but only slightly. Mr. Sandusky remained a popular figure through 2005 in Centre County.
The question of double jeopardy has also been raised.15 In relation to these charges, there would have to be new charges relating to Victim 6 specifically or B. K. Had Mr. Gricar discovered an additional situation in the early 2000’s, the charges relating to these two victims would still be the same; Mr. Gricar would still have had to try Mr. Sandusky on the same evidence. Only if a video of one of the incidents surfaced or if Mr. Sandusky were to suddenly announce that he had “sexual feelings” during the incidents would this change. I’m pretty sure Mr. Gricar was not expecting either to happen.
There is a strong argument against this possibility, however. The participants are not always available. In the 1998 incident, one alleged victim, B. K., is in the military and out of the county and could not testify. Sometimes they die or have a brain injury in the intervening times. Sometimes even with the Internet, you can just lose track of people, especially a child.
We may never know what thoughts went through Mr. Gricar’s mind when he made this decision. For me, it is a bit easier to believe that a very bright prosecutor made an, uncharacteristically, very stupid mistake. I would rather believe that than that a tough prosecutor, who “pursued cases doggedly,”3 turned away when he faced powerful and popular defendant. I hope it isn’t something else.
If it was a mistake, did he ever discover it?
6 Justice With Judge Jeanine 11/13/11 http://www.foxnews.com/on-air/justice-jeanine/index.html
[Late Note: Pennsylvania's statutes were not on-line until July of 2007, http://www.postgazette.com/pg/07194/801474-100.stm ]
Centre Daily Times Ray Gricar Section: http://www.centredaily.com/138/
Link to the Main Index for Sporadic Comments on Ray Gricar: http://www.centredaily.com/2011/03/21/2597340/main-index-32011.html
E-mail J. J. in Phila at firstname.lastname@example.org