The Penn State Scandal: How Not to Defend Yourself

From Paterno's suspicious property transfer to Sandusky's damning interview and McQueary's potentially perjurious testimony, the Penn State scandal grows murkier by the day

Reuters

Exposed to the first glimmers of sunlight, the rats of the Penn State University rape scandal are scurrying for cover. And so far they are proving to have been more adept at the alleged cover-up than they are at minimizing their own legal exposure now that the matter is out in the open. It's only Wednesday, and so far the week has been riddled with questionable moves by these suddenly questionable men.

Former assistant coach Jerry Sandusky, accused of child rape, doomed himself Monday night during a powerful interview conducted by NBC's Bob Costas. Coach Mike McQueary, who reportedly saw one of Sandusky's alleged rapes, appears to have contradicted himself over who he told about what he saw. And The New York Times now reports that Joe Paterno himself, the legendary coach, transferred the deed to his home to his wife for $1 this summer, a move his lawyer said was routine estate planning but which raises legitimate questions about pre-litigation protective transfers.

These are all the actions of men who know that things are likely to get much worse before they ever get better. You can bet that the potential jurors in the criminal and civil cases to come will gleefully be shown the Sandusky interview -- by far one of the creepiest television moments in legal history. You can be sure that investigators and prosecutors are renewing their efforts to nail McQueary's story down to a definitive account. And Paterno's transfer will be subject to judicial scrutiny if, as expected, he is successfully sued in a civil case by one or more of the alleged victims.

Let's start with Sandusky and his unforgettable television appearance Monday night. His attorney, Joseph Amendola, has received a great deal of criticism for allowing Sandusky to face Costas. All of this criticism is warranted. There is rarely a good reason for putting a criminal defendant on television before trial. And there are a hundred reasons for not doing so. This is true even where the client is a seasoned, savvy television personality. It is even more true when the client is an oddball ex-coach accused of child rape trying to portray himself as a fellow who innocently likes to shower and "horse around" with young boys.

If Amendola knew his client would say such things to Costas, he never should have let Sandusky near the telephone that night. If the lawyer didn't know precisely what his client was going to say to Costas, he never should have let Sandusky near the telephone that night. If Amendola thought he had properly vetted Sandusky before the interview, then either he was wrong or Sandusky fooled him. Neither scenario will generate much confidence in either man in the trials to come. In the court of public opinion, neither man will likely ever recover. 

Amendola tried to do damage control Tuesday, but it was way too late. On Wednesday, the Times reported that one of Sandusky's alleged victims has decided to push for criminal charges based upon Sandusky's comments to Costas. Meanwhile, tens of millions of people, including thousands of potential jurors in Pennsylvania, now have an image of Sandusky that will be hard to erase. If Sandusky is guilty, none of this matters much. If he is innocent, he and his lawyer may have just committed legal suicide, all for an interview that was neither required nor necessary. Can a lawyer sue a client for malpractice?

McQueary, for his part, now says that he stopped an alleged rape by Sandusky in 2002 and reported it to the campus police at Penn State. Earlier, to a grand jury, he reportedly said that upon seeing the incident he left the building and called his father. The grand jury reported that McQueary was never questioned by the police. But this is not the same as saying that McQueary never had any contact with the police. You can have contact without being questioned. There is some ambiguity, too, about whether McQueary now is saying he contacted the Penn State campus police or the local police, neither of which in any event seem to be rushing to endorse McQueary's story.  

Perhaps these differing accounts can be reconciled. Perhaps McQueary contacted the campus police after he spoke to his father. Perhaps McQueary wasn't even asked during his grand jury appearance whether he stopped the alleged assault before he left the shower area. He says now that he stopped the alleged rape but not "physically," but what does that mean? Clearly, there is more to his grand jury testimony than the rest of us know. Or, perhaps, as I suggested last week, the grand jury simply didn't do a good enough job in asking the right questions of the right people. Investigators may have believed McQueary a year ago. Now maybe not so much. 

The ambiguity in McQueary's story is perhaps natural to understand. Maybe he wants to pretend to the world now that he did more than he really did to stop and report the assault. It's not a crime to lie to a reporter or a friend. It's not a crime to send a bragging email. But it is a crime to lie to a grand jury. So we are at the "are you lying now or were you lying then?" moment for McQueary. His credibility not only impacts his own liberty, but the liability and perhaps the liberty of Sandusky and Paterno as well. Every lawyer involved in this scandal, on every side, needs to know whether and to what extent McQueary can withstand cross examination. Right now, no one knows.

And no one will know for a while why Paterno transferred the deed to his house to his wife. The estate planning defense is a reasonable one -- people Paterno's age make all sorts of asset transfers for all sorts of legitimate reasons. And if Paterno in the end gets a judgment against him it will be hard for the plaintiffs to unwind this transaction. But the move raises a red flag that plaintiffs' attorneys and perhaps even prosecutors will want to check out. Paterno knew about the Sandusky investigation this summer. He knew he might face legal exposure if it broke. He knew his assets would be in jeopardy if he lost. And he wouldn't be the first guy to try to put stuff in his wife's name.