An appeal for Sandusky’s retrial

10 years later, questions of fairness remain

A decade ago, a reporter for the Harrisburg Patriot-News revealed the investigation of a prominent Penn State assistant football coach, Jerry Sandusky.

The headline read: “Sandusky faces grand jury probe.”

The story came through an unlawful and probably purposeful leak of grand jury material.

A few months later, on Nov. 4, 2011, the Pennsylvania Office of Attorney General (OAG) released its presentment, accusing Sandusky of sexual contact with eight boys.

The presentment also charged two PSU administrators with failure to report child abuse, child endangerment, and perjury.

Ten years later, two of us question the legal process which led to three Penn State administrators going to jail, the besmirching of a brilliant coaching career, and a prison sentence of 30 years for Sandusky.

In the wake of a decade-long retrospective of the most prominent scandal in Penn State’s history, it appears that Pennsylvania’s jurisprudence system was far from perfect.

Although the post-conviction appeal process has denied it for a decade, we believe a lack of due process and legal chicanery led to the miscarriage of justice for five Penn Staters: President Graham Spanier, Vice President Gary Schultz, Athletic Director Tim Curley, coach Joe Paterno and Sandusky.

The tide is changing slowly for the rehabilitation of four who were involved in the administration of PSU athletics, three of whom are still living, as Paterno died before the Sandusky trial.

More importantly, there is a movement to give real due process to Sandusky, something lacking in the Pennsylvania OAG’s investigation through 2011 and the subsequent trial.

The facts behind three failures to honor due process stand out. First, Senior Deputy Attorney General, Jonelle Eshbach, wrote a misleading presentment which charged Sandusky with the abuse of a boy on Penn State property.

Eshbach changed whistleblower Mike McQueary’s testimony by wrongfully claiming that McQueary saw a boy “being subject to anal intercourse by a naked Sandusky” in a Penn State shower room.

These words led to a rush to judgment, the political pressure to convict, and the general moral hysteria surrounding a crime judged by public opinion as horrible.

McQueary attempted to correct the record, but Eshbach demurred. Second, Chief Deputy Attorney General Frank Fina, Eshbach’s boss, had his law license revoked for unethical behavior during grand jury hearings regarding the case.

When preparing one witness for grand jury testimony, Fina said, “Mike never told anyone that he saw anal intercourse.”

In one of his egregious failures, Fina made no attempt to correct the materially false statement in the OAG’s presentment written by Eshbach and approved by Fina, her boss.

Third, the investigation by the OAG and its agents used a theory of repressed memory to show Sandusky had abused boys.

This controversial theory is that a memory of traumatic sexual abuse can be blocked and then recovered under intense ‘therapy’ or blunt interrogation.

Experts in the field, including Professor Elizabeth Loftus, have argued repressed memory is unlikely because trauma remains vivid and is difficult to forget.

The OAG searched for a repressed memory in several hundred adults and one adolescent who were all children in Sandusky’s Second Mile program.

When first interviewed, none had a memory of sexual abuse.

The adolescent was badgered, coaxed, and cajoled for months before agreeing with the authorities that he was sexually abused. Even then, the adolescent’s testimony was not credible to the grand juries prosecuted by Fina and Eshbach.

Yet, statements of recovered memory had a profound impact upon the outcome of Sandusky’s trial.

The combination of memory recovery and a false narrative in the presentment affected public opinion, through media sensationalism, and probably tainted the jury pool.

Such violations of both the law and ethics raise great concern about the legal actions taken against Penn State administrators and Sandusky.

These irregularities should be enough to justify a retrial for Sandusky to correct the lack of due process arising from materially false statements and unethical behavior by Pennsylvania’s OAG.

Engelder and Smith are emeritus professors at Penn State.


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