by Geoff Rushton
The end is in sight for Mike McQueary’s whistle-blower and defamation lawsuit against Penn State.
Four years after the suit was first filed, specially presiding Judge Thomas Gavin told a Centre County jury Tuesday morning that he expects closing arguments on Thursday morning with deliberations to follow. Those remarks came immediately after McQueary attorney Elliot Strokoff rested the plaintiff’s case following more than six days of testimony. Attorneys for Penn State began calling witnesses on Tuesday and are expected to wrap up by the end of the day Wednesday.
A verdict, then, will come just shy of the fifth anniversary of the grand jury presentment against Jerry Sandusky on child sexual abuse charges. McQueary became a central figure in that case when it became known in November 2011 he was the unnamed Penn State graduate assistant who in 2001 reported to former university administrators Tim Curley and Gary Schultz seeing Sandusky with a boy in a locker room shower. A state prosecutor and investigator earlier in the trial described McQueary as “the linchpin” of the investigation and essential to the ultimate conviction of Sandusky on 45 counts in 2012.
McQueary, who became wide receivers coach and recruiting coordinator in 2004, is suing Penn State on claims that former Athletic Director Curley and Vice President Schultz misrepresented how they would handle his 2001 report; that former President Graham Spanier’s statement of support for Curley and Schultz caused harm to his reputation; and that the cumulative effect of Penn State’s actions, including placing him on paid administrative leave and not renewing his contract, was retaliatory and harmed his ability to find employment.
He is seeking $4 million in lost career earnings and other damages. The jury will decide on McQueary’s defamation and misrepresentation claims, while Gavin will decide the whistleblower claim.
Penn State’s first witnesses were self-described friends and former colleagues of McQueary at Penn State — Kirk Diehl and Brad “Spider” Caldwell.
Diehl, who through much of the 2000s was facilities coordinator for the football program, and Caldwell, the team’s longtime equipment manager, were part of a casual group of staff dubbed “The Lunch Bunch” that met in the Lasch Football Building several times a week for lunch and conversation. That group included McQueary and former director of football operations Tom Venturino.
Under questioning from Penn State attorney Nancy Conrad, both said until it was reported in the media, they did not know McQueary was the grad assistant in the presentment. That included when Spanier met with Athletic Department staff and, in part, relayed similar sentiments to the statement McQueary says defamed him, in which Spanier expressed his support for Curley and Schultz. Both Curley and Schultz were charged with perjury for allegedly lying to the grand jury about what McQueary reported to them
“…I have complete confidence in how they have handled the allegations about a former University employee…. Tim Curley and Gary Schultz operate at the highest levels of honesty, integrity and compassion. I am confident the record will show that these charges are groundless and that they conducted themselves professionally and appropriately,” Spanier said in the statement.
Diehl and Caldwell both said they had not seen that statement until last month, after they were subpoenaed for this trial. Both said at that point they still did not infer a reference to McQueary. Conrad has pressed that point in questioning with numerous witnesses throughout the trial as the university claims Spanier’s statement was not defamatory because it did not refer to McQueary and no one inferred that it did.
Both Diehl and Caldwell recalled a lunch conversation with McQueary sometime in the mid-2000s where the discussion turned to recently reported NCAA violations at another school. They talked about how they would report a violation to Coach Joe Paterno.
“Mike said he saw something pretty devastating and went to Joe with it,” Diehl testified.
“I know Mike mentioned ‘I saw something that changed my life forever,'” Caldwell added. He said they pressed McQueary for details but he would not offer more information.
Both said they consider McQueary a friend and thought highly of him as a coach. Diehl said when he came into the courtroom Tuesday he shook McQueary’s hand and told him he loved him. On cross-examination from Strokoff, though, both said aside from bumping into him around town, they have not seen him socially since Penn State placed him on administrative leave on Nov. 11, 2011.
Then again, as they said on questioning by Conrad, they rarely saw each other socially outside the office before then. Looking to demonstrate that Penn State’s actions isolated McQueary from his former colleagues, Strokoff noted that in June 2012 a retirement party was held for Caldwell. Diehl said all former football lettermen were to have been invited. McQueary, a former starting quarterback for Penn State, testified earlier that he was not.
Diehl and Caldwell said no one ever told members of the football staff not to talk to McQueary. They did, however, say they were told in a meeting with university counsel to avoid speaking with him about his lawsuit.
Caldwell remembered being told by Venturino that McQueary was told he could not coach in the Nov. 12, 2011 game against Nebraska. He said he got in his car and cried.
“He just loved game days… he loved signaling plays in,” Caldwell said, seemingly fighting back tears on the stand. “I just knew it was killing him.”
“I feel bad for him. This whole thing is just a tragedy.”
Also testifying Tuesday was Steve Shelow, who oversaw Penn State Police in 2011. Penn State has argued throughout the trial that McQueary was placed on leave for safety reasons, and Shelow reviewed a police report of a terroristic threat from Nov. 11, 2011 a day before that Nebraska game.
Police received an online submission that stated “Add my name to those who have threatened Mike McQueary. Surely he will never step foot on a football field again. If he does he needs to be shot. He’s surely in my sights and I only hope someone shoots him before I get a chance.”
Shelow said the submission was traced back to someone in Melbourne, Fla. University police spoke with him and contacted the Brevard County Sheriff’s office, which said they were familiar with the man and spoke to him as well. The man was warned, but no charges were filed.
That was the only direct threat against McQueary that Shelow had personally received. Others, including former Penn State President Rodney Erickson, have testified that they had seen multiple threats against McQueary and his family.
Shelow said police took a number of steps to increase security around campus and Beaver Stadium in the week between the Sandusky charges and the game against Nebraska. The school received a bomb threat for the stadium the day before the game, which he said he considered “very serious.” After a thorough search of the stadium, however, nothing was found.
He also reviewed an email between the assistant chiefs of Penn State and State College Police which indicated the borough police were providing police details for several locations that weekend, including McQueary’s home.
Strokoff noted on cross-examination that the detail for McQueary’s home would have occurred on the weekend when McQueary was told to leave town with his family. Shelow also said he had no personal knowledge that special protection was ever afforded to McQueary.
Testimony will resume on Wednesday morning and is expected to include two hours of videotaped depositions. Likely to be among those is a deposition from former Penn State coach and current Houston Texans coach Bill O’Brien.