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Jury Begins Deliberation in McQueary Case Against Penn State

by Geoff Rushton

Five years ago next week, Penn State was rocked to its core.

On Nov. 5, 2011, former Penn State football assistant coach Jerry Sandusky was arrested on child sexual abuse charges, while two Penn State administrators were charged with perjury (since quashed) and failure to report suspected child abuse.

In the middle of that was Mike McQueary, who told investigators he witnessed in 2001 Sandusky in a locker room shower with a boy and said he reported it in explicit detail to former Athletic Director Tim Curley and Vice President Gary Schultz.

“Mike McQueary has been living under a very dark cloud for those five years,” his attorney, Elliot Strokoff, said Thursday.

After eight days of testimony, Strokoff and Penn State attorney Nancy Conrad each gave closing arguments Thursday morning in the trial for McQueary’s whistleblower and defamation lawsuit against the university.

A Centre County jury will decide on McQueary’s claims of defamation and misrepresentation, while specially-presiding judge Thomas Gavin will decide on the whistleblower claim. Deliberations began at about 2:15 p.m. Gavin’s decision on the whistleblower count may not come until next week.

McQueary, a former wide receivers coach who was a graduate assistant at the time of the 2001 incident, contends that Curley and Schultz misrepresented how they would handle his report; that Penn State defamed him in a statement of support for Curley and Schultz by former President Graham Spanier; and that that the cumulative effect of Penn State’s actions, including placing him on leave and not renewing his contract, was retaliatory and harmed his ability to find employment.

Penn State, meanwhile, says Spanier’s statement was an opinion about Curley and Schultz and never referenced McQueary. The university claims Curley and Schultz did what they told McQueary they were going to do and that McQueary’s inability to find work since he was placed on paid leave and his contract ended is his own fault, not Penn State’s.

Both sides reviewed the cases they’ve been mounting since the trial began on Oct. 17.

Conrad reiterated how Spanier’s statement never mentions McQueary, that he never came up when the statement was drafted and how no one who was involved with its drafting or who read it inferred a connection to him. She said the language of the statement makes clear it was Spanier’s opinion based on his experience of knowing and working with the two men for 16 years.

“The evidence simply does not support that there is any connection in that statement

Strokoff argued that it defies belief that Spanier was unaware of who the graduate assistant in the grand jury presentment was, since he worked closely with Curley and Schultz and all three had been called to testify to the grand jury. He cited the testimony of Spanier and others who said they hadn’t read the grand jury presentment, and didn’t know the exact charges against Curley and Schultz when the statement was written and published.

“Nobody read the presentment before this thing was released and put out there forever,” Strokoff said. “If there ever was a reckless indifference to the truth, this is it.”

He said Spanier’s statement of confidence that “the record will show these charges (against Curley and Schultz) are groundless,” directly implies it was McQueary, not Curley and Schultz, who lied to the grand jury.

On the misrepresentation count, Conrad began by emphasizing that the jury did not hear from Curley and Schultz, who exercised their Fifth Amendment rights as they still face charges of failure to report and child endangerment.

She said that McQueary testified Curley and Schultz told him the matter was serious, that it would be appropriately investigated and they would take appropriate action. She pointed to the testimony of McQueary’s father, John, and family friend Dr. Jonathan Dranov, both of whom McQueary told about the shower incident the night it happened. Dranov, she said, testified he did not believe he had received a report of child abuse based on the information McQueary provided.

After McQueary met with Curley and Schultz, Curley called him 10 days later to tell him the steps they were taking – informing Sandusky’s Second Mile charity and telling him not to bring children to the football facilities.

“No one told Mr. McQueary ‘You cannot go to police,’” Conrad said.

Strokoff countered that McQueary expected that the two high-ranking officials would follow through on an investigation and handle it appropriately.

“Mr. Curley and Mr. Schultz did not tell the truth when they met with Mike and said they will see it’s investigated,” he said. “They did the opposite. There was no investigation, not by anyone.”

In making his argument for punitive damages, Strokoff, who suggested the pride and revenue of Penn State football informed the administrators’ decision not to report the 2001 incident, said the jury should send a message.

“What Penn state has done to Mike McQueary is absolutely outrageous,” Strokoff said. “Not investigating his report and implying to him it was investigated – this coming from the person who supervised university police and the athletic director — that is outrageous. It should never be allowed to happen again.”

McQueary has argued that Penn State began to retaliate against him for cooperating with prosecutors by first keeping him from coaching in the Nov. 12, 2011 game against Nebraska, then placing him on leave.

Penn State has argued throughout the trial that the university had received threats against McQueary and he was placed on leave for his own safety.

“As you heard from friends and co-workers, they were genuinely concerned for Mr. McQueary’s safety,” Conrad said.

Strokoff said McQueary never took the threats seriously, nor did his contacts in the Attorney General’s office. Steve Shelow, who oversaw university police in 2011, testified he had personally received just one threat against McQueary, submitted online and traced back to someone in Florida who was never charged.

Strokoff also noted that a bomb threat at Beaver Stadium for the Nebraska game, cited multiple times by the defense, was received 20 hours after it was announced McQueary wouldn’t coach in the game, and after it was announced McQueary had been placed on leave.

McQueary says further actions by Penn State harmed his reputation and have prevented him from finding work in coaching. Strokoff said McQueary was placed on leave just days after Curley, who was charged with a crime, was given the same status. McQueary, he said, was not given the courtesy of an interview with new coach Bill O’Brien as other assistants were and was prohibited from using athletic facilities.

Taken together, Strokoff said, Penn State’s actions have cast McQueary in a negative light that has made coaches and athletic directors unwilling to hire him.

“He had a network. When the university put a cloud on Mike McQueary as it did on Nov. 5 then emphasizes it by not letting him coach in the Nebraska game and placing him on administrative leave, that says to that network the university isn’t supporting you.”

Penn State has argued throughout the trial that media attention and public perception that McQueary should have done more to stop Sandusky in 2001 have harmed his reputation. His efforts to find a job, the university argues, have been hobbled by his own shortcomings, having spent his career at just one school and not developing a network of contacts or range of experience.

“The harm Mr. McQueary alleges is not the result of Penn State, but the result of Mike McQueary,” Conrad said. “It is his own failures – his own failure to act, his failure to distinguish himself in college football, his failure to develop a network of contacts, his failure to act that night in 2001.”

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