HARRISBURG, Pa. (AP) — A judge will soon decide the most significant pretrial issue in former Penn State assistant football coach Jerry Sandusky’s child sexual abuse case: whether to dismiss charges.
It’s a question that once again brings to the forefront “Victim 2,” a still-unidentified boy whom a witness has said he saw being molested by Sandusky in the football team showers a decade ago, drawing a response from then-head football coach Joe Paterno that ultimately cost him his job.
For five months, Judge John Cleland has issued a steady stream of pre-trial rulings. He decided that local jurors will determine Sandusky’s fate, he has refereed numerous disputes among lawyers about what documents the defense will get ahead of trial and he has kept the case on track to get under way next week.
Sandusky’s lawyer wants Cleland to throw out all 52 counts against him, arguing that some are too vague to defend, and the charges involving Victim 2 and Victim 8 — an identified boy who prosecutors say was molested by Sandusky in a university shower — can’t be proved.
The attorney general’s office argued Friday that the charges should not be thrown out because any argument, and resulting decision, could only be made based on sworn testimony already given in the case. That hasn’t happened because Sandusky waived his right to a preliminary hearing in December.
This month, Sandusky lawyer Joe Amendola sought dismissal, saying that testimony regarding Victim 2 in a parallel case by a key witness, assistant coach Mike McQueary, fell short of what would be required for a conviction. Amendola also argued that there was no evidence of sexual contact with a so-called Victim 6 and that the charges involving Victim 8 would require impermissible hearsay.
Sandusky, 68, is accused of sexually abusing 10 boys over 15 years, but recent defense filings have suggested prosecutors may have designated as many as seven additional victims. He denies the allegations and is confined to his home to await trial.
The Victim 2 allegations are among the most serious that Sandusky faces, and the fact that prosecutors haven’t been able to find him has complicated their case, as demonstrated by the recent change in the allegation’s date, from March 2002 to February 2001.
Adding to the mystery is the report by Amendola that a young man contacted him after Sandusky’s arrest to say he believed he might be Victim 2. The young man, accompanied by his mother and brother, met with Amendola, but Amendola wasn’t convinced he fit the description and the lawyer said he wasn’t planning to call him as a witness.
“I wasn’t sure” he was Victim 2, Amendola said in March. “I’m still not sure. I haven’t been able to verify it. Jerry’s very sure.”
Amendola said the young man told him Sandusky hadn’t abused him, but he later obtained a lawyer and cut off contact.
McQueary testified at a December preliminary hearing for Penn State administrators Gary Schultz and Tim Curley that he arrived in the locker room one Friday night and heard “rhythmic slapping sounds” and a shower running.
He said he saw Sandusky behind a boy, whose hands were against the wall, and there was no question in his mind that a sexual act was going on. Both were naked, he said.
“I believed Jerry was sexually molesting him and having some type of sexual intercourse with him,” McQueary testified. He added he didn’t “see insertion” and was not 100 percent sure there was intercourse.
He said he made eye contact with both Sandusky and the boy but didn’t say anything before leaving the locker room.
“I can’t describe what I was feeling or thinking,” he testified. “Shocked, horrified and, to be frank with you, probably not thinking straight, you know. I was distraught.”
McQueary first contacted his father and then Paterno, who reported the matter to Curley. Paterno has said that in hindsight, he wished he had done more. The board of trustees said Paterno’s response — which didn’t involve a direct report to university police — exhibited a failure of leadership.
Paterno was fired by the trustees a few days after Sandusky’s arrest and died of lung cancer in January. He wasn’t charged with any crime.
Curley, now on leave, and Schultz, who has retired, were both charged with failure to properly report suspected child abuse and perjury for allegedly lying to the grand jury that investigated Sandusky.
The two men deny the allegations and are seeking dismissal of charges.
Lawyers and others involved in the case are subject to a gag order imposed by Cleland. The attorney general’s office declined to comment for this story, and Amendola didn’t return a message seeking comment.
Sandusky’s trial is scheduled to start with jury selection in Bellefonte on June 5.