A Report From The Curley/Schultz Courtroom

Just after 9 a.m. on Friday morning, most of the 100 reporters sitting in the wooden pews inside the Dauphin County Courthouse in Harrisburg—all of whom, like myself, had gone through two separate security checkpoints (metal detectors, bag checks and body wands to augment the bomb-sniffing dogs and heavy police presence inside and outside the courthouse) to gain entry to the proceedings—wheeled around to look at the heavily guarded door at the back right side of the cavernous 5th floor courtroom. That’s because Commonwealth prosecutors had just called Mike McQueary to the stand—the first, and most anticipated, witness in the preliminary hearing to determine whether Penn State athletic director Tim Curley, 57, and retired PSU vice president Gary Schultz, 62, should go to trial on perjury and failure to report charges for lying to a grand jury about what McQueary told them in 2002 about witnessing Jerry Sandusky and a young boy (Victim 2 in the Sandusky grand jury report) together in a Penn State locker room shower.

Wearing a navy blue suit and looking straight ahead, the 6′4″, 37-year-old ex-quarterback and current PSU assistant coach with the shock of red hair and plenty of experience walking into arenas of battle, came through the door and strode confidently past the gallery of 100 members of the public staring up at him and down the center aisle that bisected the rows of reporters furiously typing, scribbling and tweeting. The gray-haired Curley and darker-haired, mustachioed Schultz—sitting at separate tables in front of the judge’s high bench with their lawyers at their sides—glanced up at McQueary as he passed. McQueary was sworn in and sat down behind a microphone at the front of the room for his first public testimony about what he saw in the Lasch Building shower room on the night of March 1, 2002.

As Judge William C. Wenner looked on, McQueary sat upright in his chair and came across calm and confident through two hours of testimony, answering questions from prosecution and defense lawyers about what he saw that night, and about his subsequent meetings with Joe Paterno and Curley and Schultz to tell them what he saw.

While everyone in the courtroom expected McQueary to divulge unpleasant, disturbing details of what he witnessed, that crucial testimony was still exceedingly difficult and unsettling to hear. Responding to questions from a state prosecutor, McQueary described entering the locker room around 9:30 p.m. and immediately hearing “rhythmic slapping sounds” that sounded like “skin on skin” coming from the shower area; he said he instantly became “alarmed and alerted,” thinking there was some kind of activity happening in the shower that he “didn’t want to be a part of.”

McQueary went on to describe seeing Sandusky in the shower with a young caucasian boy he estimated to be about 10 years old. He said Sandusky was standing behind the boy with his arms “wrapped around the boy’s midsection” and “moving slowly” while the boy’s hands were pressed against the shower walls. McQueary testified that while he heard no screaming or protesting and didn’t see any penetration, “I believe [Sandusky] was having some type of intercourse based on the positioning” and that his first thought was that “Jerry’s molesting the boy.”

As McQueary spoke, both Curley and Schultz occasionally leaned over to confer with their lawyers, who scribbled notes. McQueary continued to speak in a clear voice, never fumbling words, never appearing intimidated or overwhelmed by the moment. At the back of the courtroom, all eyes from the public—instructed at the outset to remain quiet and keep their cell phones off and out of view—remained fixed on McQueary while reporters’ eyes flitted between the former quarterback and their laptops, notebooks and cell phones. The sounds of fingers clicking away at keyboards provided a steady drone beneath the state’s questions and McQueary’s detailed answers; the noise seemed almost thunderous as it filled the brief empty spaces during testimony.

McQueary went on to explain that he slammed his locker door shut and took a few steps toward the shower room, approximately two to three yards from where he’d been standing. He said both Sandusky and the boy—by this point aware of McQueary’s presence and now “four or five feet apart”—turned and “looked directly in my eye.” McQueary explained that in that moment, he felt “Not very good…shocked, horrified, frankly not thinking straight, distraught.” McQueary then said he left the locker room and went to his office and called his father; that the whole incident lasted about 45 seconds.

McQueary testified how he went to Paterno’s house early the next morning, sat at the coach’s kitchen table and described what he’d seen the previous night—calling it “way over the line” and “extremely sexual in nature.” McQueary said he never used the words “sodomy” or “anal intercourse” during his conversation with Paterno, but that he conveyed the severity of the incident to the coach. He said Paterno was “shocked and saddened,” slumped back in his chair, and told McQueary he was “sorry you had to see that,” that he “needed to tell some people,” and that McQueary had “done the absolute right thing” in telling him.

The former quarterback then detailed his meeting “9 or 10 days later” with Curley and Schultz, during which McQueary said he again conveyed the “severe” and “extremely sexual” nature of what he witnessed to both of them. McQueary testified that four or five days later he got a call from Curley telling him he’d contacted the Second Mile foundation to tell them about the allegations, and barred Sandusky from bringing kids to PSU facilities. McQueary said he accepted what Curley told him without protest, and that Curley never instructed him not to tell anyone about the shower incident.

He also testified that while he never saw Sandusky at the facility with young boys after the 2002 incident, just seeing Sandusky still using the facility, he “personally found it troubling and not right.” McQueary added that two or three months after first reporting the incident to Paterno, Curley and Schultz, Paterno asked McQueary “If I was OK, in relation to what I saw.”

Under cross-examination, Curley attorney Caroline Roberto peppered McQueary with specific questions about the night of the shower incident, including where he’d eaten dinner that night and what type of doors are in the locker room. When the prosecution objected, calling the line of questioning irrelevant, Roberto argued to the judge that she was “testing [McQueary's] recollection.” Roberto had McQueary again explain—in graphic, disturbing detail—what he’d seen in the shower room that night. McQueary added that Sandusky had a “blank expression” on his face when he turned to look at McQueary, and McQueary confirmed that he did nothing before leaving to call his father. He also testified that both he and his father “considered” calling the police but never did, making the decision to report the incident to Paterno the next day.

When Roberto asked McQueary why he didn’t use words like “anal intercourse” or “sodomy” or “rape” when reporting the incident to Paterno, McQueary sat up even straighter in his chair, stared at Roberto, and his voice got louder. “You don’t go to Coach Paterno and go into great detail about sexual acts. You don’t do that,” he replied. When asked by Roberto, McQueary reiterated that he conveyed the “extreme sexual nature” of the incident to Curley and Schultz during their meeting. He said he believed he used the word “intercourse” in describing the incident to Curley, and when Roberto asked McQueary if he was certain about what he told Curley and Schultz, he retorted (with a slightly agitated tone), “I can recall [what I told them], yes ma’am.”

Then Schultz’s attorney, Tom Ferrell, took his turn cross-examining McQueary, and for a third time, McQueary recounted in detail what he’d seen occur in the shower room. Ferrell made three loud slapping noises against his leg to ask if that’s what McQueary had heard upon entering the locker room. “Yes,” McQueary replied. He asked McQueary if Sandusky had an erection when he turned to look at McQueary. “I don’t know, I didn’t look down there,” McQueary replied. Like Roberto, Ferrell continued to probe McQueary’s memories of the incident and have McQueary affirm the severity of what he’d seen. He asked McQueary if he ever tried to find out the identity of the boy in the shower with Sandusky. “No,” McQueary replied, also testifying that Paterno never asked McQueary about the identity or the whereabouts of the boy.

Ferrell also asked the question virtually everyone wanted to know the answer to—why McQueary did nothing before leaving the locker room to call his father. McQueary called the situation “delicate,” said he “tried to use my best judgement,” and that when he left the locker room “I was sure the act was over.” Again, McQueary reiterated that in his meeting with Curley and Schultz he conveyed the “extreme sexual nature” of the incident and left the meeting believing the pair understood the gravity of the situation and would do something about it. McQueary also said that in meeting with Schultz—whose position included overseeing PSU’s police department—he believed he “was talking to the head of the police.”

A few minutes past 11 a.m., his testimony concluded, McQueary stepped down from the stand and walked briskly toward the exit door, chin up and looking straight ahead as he exited the room.

Over the next hour, as it became clear that the worst of the testimony—as far as graphic descriptions of child rape—were finished, there was a palpable sense of relief among reporters and members of the public, many of whom seemed to ease back into their seats and glance around the room after being fully upright, eyes planted on McQueary, and hanging on every word of his testimony for two hours.

Thomas Harmon, PSU’s director of university police at the time of the 2002 shower incident, spent about 25 minutes testifying that he’d told Schultz about a 1998 incident involving Sandusky and a young boy in a PSU shower (Victim 6 in the Sandusky grand jury report), kept him appraised of the weeks-long police investigation, and notified Schultz that the Centre County district attorney had decided against filing criminal charges against Sandusky. Harmon also testified that Schultz never informed him of the 2002 incident. Harmon was on the stand for about 25 minutes

John McQueary, Mike McQueary’s father, ambled up to the stand next. He described the phone call he got from his son the night of the incident, saying that the younger McQueary had a “quivering, scared voice.” The elder McQueary, who seemed slightly uncomfortable and tentative on the stand at first but quickly grew more confident and assured, explained how he told his son to meet with Paterno and tell him what he’d seen.

McQueary, the COO of Centre Medical and Surgical Associates in State College, testified that Schultz was a “business associate” of his, and met with Schultz a few days after his son’s meeting with Curley and Schultz. McQueary testified that he described his son’s account of the shower incident to Schultz and wanted to know what was being done. He said that Schultz told him there were similar previous allegations against Sandusky and said, “John, there has been other innuendo, we looked into it before and we haven’t been able to sink our teeth into something substantial.” John McQueary, who called Schultz a “responsible individual” and a “good person” added that he never used the words “crime,” “anal,” “sodomy,” or “sexual assault” in his conversation with Schultz, but that Schultz left the meeting “knowing something sexual happened.” Like Harmon, McQueary left the stand after about 25 minutes of testimony.

Shortly after noon, the judge ordered a 90-minute lunch recess. Reporters and members of the public hurried out of the room to make phone calls (and hit the bathroom, as you weren’t allowed to enter or leave the courtroom during the session). In the elevator, a man exhaled loudly. “Well THAT was pretty awful,” he said. “These guys are screwed,” another man replied.

The afternoon session, which got underway around 1:45, consisted largely of the reading of transcripts from the Jan. 12, 2011 testimony given to the Sandusky grand jury by Curley, Schultz and Paterno. According to Paterno’s testimony, he “didn’t push Mike to describe exactly what it was” that he saw in the shower room in 2002, but stated that “I knew inappropriate action was taken by Jerry Sandusky with a youngster.” Paterno said he called Curley and reported what Mike McQueary had told him, and contacted nobody else because he had “a tremendous amount of confidence in Tim Curley” to handle it.

But in their grand jury testimonies, both Curley and Schultz maintained that Mike McQueary had not conveyed the severity of what he’d seen to them—directly contradicting McQueary’s testimony during the morning session. Curley said he told PSU president Graham Spanier of the incident but didn’t report it to police because he believed, based on how McQueary had reported the incident to him, it was just “horsing around.” He told the grand jury “No” when asked if McQueary had reported sexual contact between Sandusky and the boy in the shower. Meanwhile, Schultz said in his testimony that McQueary had reported something of a “sexual nature” but that it may have amounted to Sandusky touching the boy’s genitals, which Schultz said did not rise to the level of a “crime” that should be reported to police. Schultz also testified that neither he nor anyone else at PSU attempted to find out the identity of the boy in the shower. “It wasn’t up to me,” said Schultz.

As Curley’s grand jury testimony was being read, he seemed to fidget in his chair more than he’d done at any point previously, frequently leaning over to confer with Roberto, his lawyer. Schultz, meanwhile, sat stoicly in his seat as his testimony was read, only infrequently whispering to Ferrell, his lawyer.

Finally, just before 4 p.m., Roberto, Ferrell, and state prosecutors stood before Judge Wenner and made their closing statements. Roberto told the judge that in perjury cases, “it has to be more than he said, she said, or in this case he said, he said,” referring to the contradictions between Curley’s and McQueary’s testimony. She said that McQueary had “minimized” to Paterno the nature of the 2002 incident, that there was no corroboration of McQueary’s account of what he told Curley and Schultz during their meeting, and that ultimately “evidence is insufficient” to hold Curley for trial on perjury and failure to report charges. Ferrell also argued that there is no corroboration, and that McQueary’s allegations, as relayed to Schultz, were “too ambiguous,” and asked the judge to dismiss the charges against Schultz.

Then, the state prosecutor, in a loud voice, said, “The intent of Curley and Schultz was to mislead the grand jury that what they did was appropriate—it was not,” he said, adding that it was “fundamentally clear” that Curley and Schultz’s account of their meeting and how seriously they took McQueary’s allegations directly contradict McQueary’s testimony, and that McQueary is being truthful. He called Sandusky a “serial child molester” and said he was “astonished” that Curley and Schultz’s lawyers were asking for a dismissal.

Once he was finished, Judge Wenner didn’t pause for even a second before informing the courtroom that the state had made its case for probable cause and that Curley and Schultz would be held for trial. There were no gasps from the crowd—the outcome seemed to be expected by most, and the reporters quickly filed out of the courtroom. Curley and Schultz stood up and shook hands with their lawyers—Schultz looked ashen, while Curley shoved his hands in his pockets, an annoyed look on his face, before he and Schultz exited the courtroom through a side door.

In the lobby of the courthouse several minutes later, Roberto stood in front of a dozen news cameras and about 100 reporters. “Nothing happened today that we didn’t expect,” she said. “As you know, the preliminary hearing burden of proof that is on the Commonwealth is extremely low.”

Reiterating her closing arguments that the basis of a perjury charge can’t be one person’s word against another, Roberto said that the state would “never be able to reach their burden of proof at a trial.

“I will tell you that Tim Curley has a track record of honesty, truthfulness, and integrity—he told the truth. He believes that what he told the grand jury is the truth,” Roberto insisted, speaking slowly and forcefully. “The question will be whether Mike McQueary has the credibility to overcome the perjury high level of proof necessary for the Commonwealth…had [Curley] heard from Mike McQueary that this boy in the shower was being in any way sexually assaulted, anally sodomized, or there was some serious sexual conduct, he would have remembered that.”

“We will clearly be acquitted of these charges [at trial],” Roberto said.

Taking his turn in front of the reporters, Ferrell—who had a confident swagger about him—said that “actions speak louder than words…Mike McQueary did not call the police in the Lasch Building, Mike McQueary went home…the next day he talked to Coach Paterno, what did Coach Paterno do? He did not call the police. The next week and a half, what did Mike McQueary, his dad, and Coach Paterno do? No one called the police.”

“There was some vague allegation made of inappropriate conduct perhaps of a sexual nature,” Ferrell continued. “If [Schultz] were ever told of allegations of anal rape of a young boy on university property or anywhere, he would have followed it up, he would have called the police, he would have started an investigation…the fact is that Mike McQueary never said such a thing to Coach Paterno or to my client, Gary Schultz. Gary’s telling the truth, Gary’s going to be acquitted.”

And then it was Pennsylvania Deputy Attorney General Marc Costanzo’s turn at the microphone. He said that the hearing went “very smoothly” and that the state was “not surprised” by the judge’s decision to hold Curley and Schultz for trial. He also said that he expects Paterno to testify at the trial, either in person or by some other means, depending on his health (Paterno is currently being treated for lung cancer and a fractured pelvis sustained in a recent fall).

“I’m not here to discuss all the evidence, I’m not here to debate the case,” said Costanzo. “Despite what you may have just heard [from Roberto and Ferrell], we’re not in a courtroom. I am not going to make a closing argument to you.”

“There will be a time for that,” he said.

One Response to “ A Report From The Curley/Schultz Courtroom ”

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