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Former Penn State administrators to appear at preliminary hearing on Friday

By Peter Hall, The Morning Call (Allentown, Pa.)

The next act in the Penn State child sex abuse saga has the potential for high drama as inconsistencies have emerged in the story from the state’s key witness against two former university executives charged with failing to report an alleged rape and lying to a grand jury about what they knew.

Former Athletic Director Timothy Curley and former university Vice President Gary Schultz will appear in district court Friday in Harrisburg for a preliminary hearing on one charge each of failure to report child abuse and perjury.

The state attorney general’s office alleges they failed to take action when a graduate assistant, now assistant football coach Mike McQueary, came to them with concerns about an incident he witnessed in the football team’s locker room in 2002.

But since the charges were filed, newspaper reports have suggested McQueary’s grand jury testimony differed from his other accounts of the incident.

Attorney general’s office spokesman Nils Frederiksen said prosecutors are prepared to go ahead as planned with the hearing, where they must establish probable cause that crimes were committed.

“We’re not going to debate unsourced media accounts that infer various things, because none of them are testimony and none of them are statements made under oath,” Frederiksen said.

Veteran defense attorneys say the inconsistencies present an opportunity for Curley and Schultz’s lawyers, Tom Farrell and Caroline Roberto, to catalog the differences between McQueary’s grand jury testimony and other accounts before trial.

“As a scrupulous defense attorney, you’re going to review those inconsistencies and use them as material to impeach the witness,” Norristown defense attorney John McMahon said. “It’s a huge opening and it’s something you want on the record with a court stenographer.”

According to court documents, McQueary told the grand jury he saw Sandusky raping a boy he estimated to be 10 years old and told his father immediately and head coach Joe Paterno the next day.

But since the charges against Sandusky, Curley and Schultz were announced, different versions of McQueary’s story have emerged.

The Morning Call reported last month that McQueary told a classmate in an email that he stopped the rape and contacted police.

The Harrisburg Patriot-News reported Sunday that according to a friend of McQueary’s father who was present when McQueary first spoke about the incident, McQueary said he saw Sandusky in the shower with a boy, but didn’t see anything sexual.

The perjury charges against Schultz and Curley, felonies that carry maximum sentences of seven years, are based on inconsistencies between their testimony to the grand jury and that of McQueary, whom the grand jury found “extremely credible.”

Schultz and Curley told the grand jury McQueary reported a situation that he found disturbing and that made him uncomfortable, but both denied McQueary had described a sexual assault.

“It really muddles things up for the prosecutor proving a perjury charge when you have three versions,” said Allentown defense lawyer John Waldron, adding that perjury is difficult to prove and usually a last-ditch charge for prosecutors.

The state may also examine the versions of the story and try to establish that the differences are inconsequential, Waldron said.

Easton defense attorney Gary Asteak said prosecutors also have an obligation to admit if their witness is no longer reliable.

“He is taking down some very important people on the strength of his credibility, and if he has none, I’m not sure that the attorney general wants to ride that ship down with him,” Asteak said.
©2011 The Morning Call (Allentown, Pa.)

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