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Sandusky defense fails to dent McQueary's damning testimony

Gene J. Puskar / AP

Former Penn State assistant football coach Michael McQueary arrives Tuesday at the Centre County Courthouse to testify in Jerry Sandusky's child sexual abuse trial.

ANALYSIS

Jerry Sandusky's lawyers failed to blow holes in the testimony Tuesday of former Penn State assistant football coach Michael McQueary, allowing prosecutors to score a big win in their child sexual abuse case.

Beginning with its opening statement, the defense has tried to demonstrate that the alleged victims have been coached to implicate Sandusky and have financial motives to make up their stories. 

McQueary powerfully undermined that theory Tuesday. If he saw Sandusky in the shower with a young boy in a compromising position — and the jury will not doubt that he did after his testimony — then it seems much less likely that the young men were motivated by greed or prosecutorial influence. 


But the defense missed several easier opportunities to show problems with McQueary's account.

 

Ex-coach McQueary testifies 'no doubt' he saw Sandusky having sex with young boy

Full coverage of the Jerry Sandusky trial

Wes OliverWes Oliver is a professor at Widener University who teaches criminal law and procedure. This fall he will join the faculty of the Duquesne University School of Law as a professor and director of the school's criminal justice program.

Rather than zero in on significant discrepancies in McQueary's accounts of when the incident occurred — given in previous testimony before a grand jury and in a hearing in December — the defense started off with a weak point: that McQueary previously claimed to have seen Sandusky and the boy in the shower two times rather than the three he described Tuesday — once in a mirror, again directly and a third time after he slammed a locker door to make it known that they were being observed.

Sandusky's lawyers also failed to confront McQueary about his reluctance to intervene in the situation.

McQueary has said he did not ask Sandusky what was going on and did not call the police the night of the incident. McQueary, in fact, volunteered the fact that he did not physically intervene during his cross-examination Tuesday, but the defense seemed almost oblivious to the gift McQueary handed them amid the devastating answers he provided to their other questions. 

When Sandusky's lawyers did get around to asking McQueary about the inconsistent dates he has offered in the past, their pattern of questions allowed him to give an easy explanation. 

Rather than confront McQueary directly with his testimony at a preliminary hearing during which he expressed absolute certainty about the date, the defense simply asked about his prior testimony in general. That let McQueary remind jurors that in interviews, he has also expressed uncertainty about whether the events occurred in 2001 or 2002 and declare that he did not dispute the prosecution's timeline of events. 

Perhaps most seriously, the defense failed to establish that McQueary could not have seen the most serious crimes he believes he saw because of the relative height of Sandusky and the young man he saw in the Penn State shower.

At a hearing in December involving perjury charges against former Penn State athletic director Tim Curley and former senior vice president Gary Schultz, different lawyers skillfully pointed out that McQueary could not have seen any sex unless Sandusky had been holding the boy in the air. 

The failure of Sandusky's lawyers to address that testimony may lead the jury to conclude that Sandusky did engage in sex with the young man — even though at the end of the Curley-Schultz hearing, it seemed clear that McQueary's testimony was insufficient to prove that any sex occurred. 

Finally, the defense was unprepared for McQueary's cross-examination. Apparently expecting him to say yes, defense lawyer Karl Rominger asked McQueary whether he had played in a golf tournament run by Sandusky's foundation after having witnessed the alleged shower ecounter. But McQueary said he did not play, and Rominger was not ready with documentation to challenge him.

McQueary's account Tuesday had real problems, but it was not effectively challenged, and his testimony ended up being a slam dunk for the prosecution. 

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