HARRISBURG, Pa. – The defense attorneys for three Penn State administrators didn't even bother waiting for Judge William Wenner to rule, as expected, that all charges against their clients for not reporting Jerry Sandusky on suspicion of sexual abuse will be held over for trial.
Instead, they used their closing arguments Tuesday at the end of a two-day pretrial hearing to begin assailing the honesty and credibility of key prosecution witness Mike McQueary, who in 2001 walked in on Sandusky and a boy showering in a football locker room.
"Mr. McQueary, seems to be, in my judgment, making it up as it goes along," Elizabeth Ainslie, the attorney for former president Graham Spanier, blasted in open court even if it had no obvious relevance to the point she was trying to make at the moment.
The criticism suggests, even as defense attorneys quietly tried to downplay it later, that McQueary's testimony of what he reported seeing in that shower will remain a critical part of the upcoming trials of former president Graham Spanier, athletic director Tim Curley and vice president Gary Schultz.
All three face charges ranging from perjury to conspiracy to endangering the welfare of children for failing to turn Sandusky into authorities in 2001. Wenner took just seconds to decide there was enough evidence for the case to proceed to trial. He declared it a "tragic day for Penn State."
The trial could take two months and likely won't begin until the spring of 2014. The case is complex, contentious and may swing on very precise details. It's no easy victory for the state, especially the case against Spanier and especially if a pretrial hearing likely set for October tosses out any testimony from university counsel Cynthia Baldwin.
That said, it isn't an easy one for the various defenses either, particularly that of Schultz and to a lesser extent Curley.
At the heart of the issue remain two strings of emails. The first is following a 1998 investigation into Sandusky inappropriately showering with a boy in the locker room, which was originally not prosecuted. The second is after McQueary showed up early one Saturday morning in 2001 at Paterno's house and relayed seeing Sandusky and a boy in an "extreme sexual" position.
Paterno told Schultz and Curley the next day. Schultz immediately sought university counsel for "reporting of suspected child abuse," according to law firm billing records. Yet they never reported it, never went to find the boy and waited an apparent seven to 10 days to even speak, fairly briefly, to McQueary.
In the end, the three defendants instead decided to have Curley talk to Sandusky. The one-time Penn State assistant coach carried on until he was convicted in 2011 on 45 counts of sexually abusing 10 victims. He's currently serving a 30-to-60 year sentence.
"This is a more humane and upfront way to handle this," Schultz wrote in the 2001 email chain that approved Curley's plan.
"The only downside for us is if the message isn't 'heard' and acted upon, and we then become vulnerable for not having reported it," Spanier wrote.
The message certainly wasn't "heard" and you could say the upcoming trial is the definition of "vulnerable," especially in front of a jury that could be swayed by the emotion of knowing exactly who Sandusky was and what he went on to do.
The state has tried to build a conspiracy case and the men have been painted as engaging in a mass cover-up of Sandusky's actions. There was little to no evidence of either of those things presented in the two-day pretrial here at the Dauphin County Courthouse, at least by any broad-based definition. Any conspiracy was one of group inaction.
Prosecutors failed to even suggest that evidence was ever destroyed, people were told to be quiet or anyone was instructed to lie. In fact, there was testimony that said the opposite.
What the three men are clearly guilty of is making a terrible decision not to hand Sandusky over to the authorities. Whether that reaches a criminal standard will be hashed out in court. Their failures have already cost each man their careers and reputations, plus whatever guilt they feel they deserve for Sandusky's subsequent victims.
"There is no doubt at all had this been properly handled in 2001 that Victim No. 5 would not have been assaulted in the showers," said Tom Kline, the attorney for Victim No. 5. Kline pointed to the university's financial settlement with Sandusky's victims as proof that "Penn State acknowledges that."
That's the raw, angry reality that the defense will have to deal with. How do they explain to a jury that three high-functioning, highly intelligent men hear about Sandusky doing in 2001 what Schultz himself described in 1998 as "at best inappropriate, [at] worst sexual improprieties" and decide he just needs a good talking to?
Who then hears about a guy possibly assaulting a boy in the shower again and doesn't go to the cops?
One route is to cast doubt on what McQueary actually told first Paterno and then Curley and Schultz. Both administrators have testified to a grand jury they thought it was just "horseplay." On Monday, however, McQueary testified that he said he saw a "sexual situation, a molestation incident."
Hence, here came the attacks on McQueary's credibility. First in court, then at press conferences afterwards. Curley's attorney, Caroline Roberto, delivered an absolute blitzkrieg, going after McQueary for relaying a conversation he said he had with Paterno in November 2011. Paterno, according to McQueary, predicted the school would "scapegoat" McQueary and said that when it came to the Sandusky scandal, the administration "screwed it up."
The Paterno quotes got most of the media attention Monday, even if it was mostly irrelevant to the case. "Every headline in every newspaper," Roberto said.
Roberto noted that McQueary didn't mention that conversation in any of the numerous interviews with police or any of his multiple under oath testimonies. His motivation, she decided, is money.
"Now there's been a couple thing that have happened since December 2011 [when McQueary first testified]," Roberto said. "No. 1: Mr. Paterno died. No. 2: no witnesses. And then there is No. 3: Mike McQueary filed a whistle-blower suit in which challenges Penn State for his firing.
"How convenient for Mr. McQueary to conveniently remember that Mr. Paterno said, 'They're going to scapegoat you. They're going to turn on you,' " Roberto went on, dramatically. "How convenient to remember that just in time to litigate his whistle-blower suit. How convenient that there are no witnesses."
Since McQueary is suing Penn State – not Tim Curley – it probably shouldn't matter to Caroline Roberto. Except in the case she's defending, the word of the one-time assistant coach will likely mean a great deal. Might as well start chipping away now.
This November, it'll be two years since Sandusky, Curley and Schultz were first indicted. It won't be until months after that the latter two get their day in court.
Yet with the rhetoric growing increasingly nasty, one thing remains a constant.
Mike McQueary – what he saw and what he said – remains in the eye of this scandal.