Smith and Engelder: Fairness and legal justice sought decade after Sandusky scandal

Ten years ago, Joe Paterno was fired at night over the telephone, five days after the Pennsylvania Attorney General’s office released the presentment charging Jerry Sandusky and Penn State administrators with crimes of child abuse. Paterno was never found guilty of any crime, but three administrators and Sandusky spent time in prison.

At this anniversary of a coach’s firing and the beginning of the scandal that caused Penn State to expend hundreds of millions of dollars to theoretically “move forward,” the two of us are calling for legal justice to those directly involved in the scandal. Paterno died less than three months after his due-process-less exit by Penn State’s Board of Trustees. His iconic bronze statue, placed at Beaver Stadium following his 324th victory, was hidden away. In 2001, he had just bested the great Bear Bryant’s record with a 29-27 win over Ohio State. Remember that Paterno had lost to Bear Bryant and Alabama in a terribly coached game in 1979 for the national championship. Depressed, Paterno had removed himself from Happy Valley to spend days in Brooklyn to decide if he wanted to continuing coaching, considering himself a failure. He came back to lead Penn State to two national championships with the help of his defensive coach, Jerry Sandusky.

While Joe Paterno is the best remembered individual associated with the Sandusky scandal, there are three other Penn State administrators, president Graham Spanier, vice-president Gary Schultz, and athletic director Tim Curley, who have spent time in jail. Sandusky has remained behind bars for 10 years. For nearly a year, two of us former Penn State professors, one emeritus in geo-sciences and the other in kinesiology, have been studying the legal developments.

We want justice for the quintet. With no particular ax to grind, except for fairness and legal justice, we have come to the conclusion that there should be a retrial of the Sandusky case.

Guilty or not, there is no question that due process was not accorded to Sandusky or to the administrators. First, the Pennsylvania Senior Deputy Attorney General, Jonelle Eshbach, wrote a misleading presentment and charges against Sandusky for abuse of a boy in a Penn State athletic shower room.

Mike McQueary, the assistant coach who became the whistleblower, never testified that he saw a boy “being subject to anal intercourse by a naked Sandusky.” Yet, the statement appeared in attorney Eshbach’s presentment. McQueary attempted to correct the record, but Eshbach demurred.

Second, Pennsylvania’s Chief Deputy Attorney General, Frank Fina, eventually had his law license revoked for unethical behavior during the grand jury hearings. The Pennsylvania Supreme Court judged that Fina was “someone who cannot or will not separate right from wrong,” and Fina made no attempt to correct the false statement of Eshbach.

Third, a former Pennsylvania Supreme Court Justice, Cynthia Baldwin, misrepresented Penn State administrators before the Sandusky grand jury. The Supreme Court charged Baldwin with conduct “prejudicial to the administration of justice.”

Fourth, and possibly most important, not one of the “abused” boys spoke of being sexually abused when first interviewed. However, the controversial and scientifically rejected theory of repressed memory used by interviewers was hammered into the minds of at least some of the “victims” after being coaxed and badgered for months before agreeing with the authorities that there was sexual abuse. Statements of the discredited “recovered memory” had a profound impact upon the outcome of the Sandusky trial.

The combination of the false narrative in the presentment, illegal activity of the Pennsylvania Attorney General’s office, administrator misrepresentation, and the problematic use of repressed memory led to media sensationalism and likely influenced the jury that was not aware of the questionable actions. It led to an essential “death” penalty for Sandusky and the tainting of four Penn State administrators, including the damaged legacy of a famed coach. The irregularities are enough to justify a retrial for Sandusky.