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Michael Smerconish

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Sandusky Will NOT Stand Trial. Now About Curley and Schultz...

Posted: 01/08/12 12:09 PM ET

Permit me one New Year's prediction about which I am absolutely certain, and two for which I have a strong hunch.

The sure thing: The Jerry Sandusky/Penn State scandal will be "the" state and local issue of 2012. Not even Pennsylvania's role in the presidential race will be able to compete with the unfolding drama in what is now (un)Happy Valley.

The hunches: (1) Sandusky will not stand trial, but (2) former athletic director Tim Curley and former vice president Gary Schultz will, only to be acquitted of the perjury charges they face.

With nine or 10 young men prepared to offer sworn testimony that Sandusky sexually assaulted them, there appears little prospect for a finding of not guilty. If there were one accuser, or two, perhaps the defense could try to make a case for a tight circle of liars. But when you could nearly staff a football lineup with accusers, it strains credulity to believe they are all making it up. More likely, the allegations that Sandusky is a serial abuser will hold up.

One person could have saved the former Penn State defensive coordinator: himself. But that won't happen. Sandusky has given two disastrous interviews that suggest what he'd be like on the stand. And when sportscaster Bob Costas asked the critical, and predictable, question, Sandusky needed to repeat it before he could answer it: "Am I sexually attracted to underage boys?" That's not a good sign.

In a New York Times on-camera interview, Sandusky himself acknowledged his fate, saying, "I miss, I mean you know I'm going to miss my dog." That comment only reinforced my guess that this case ends in a plea.

Assistant coach Mike McQueary is important to the prosecution of Sandusky, but not vital. However, the prosecution of Curley and Schultz rests entirely on McQueary.

According to the grand jury report, McQueary testified that he saw a boy being subjected to anal intercourse by Sandusky in a locker-room shower. He reportedly told his father, John, and a family friend, Jon Dranov, though what was actually said is in dispute. But they then advised him to tell Joe Paterno. After speaking with the head coach, McQueary then spoke to Curley and Schultz.

The charges of perjury and failure to report a crime against Curley and Schultz presuppose that McQueary told them what he saw in 2002 with the same clarity with which he is now testifying. If that's the standard used, they won't be convicted.

First, under Pennsylvania law, a "he said/he said" is not enough for a conviction. The prosecution must corroborate McQueary. The possible corroborators, by my count, include John McQueary, Dranov, and Paterno. However, there are problems in each case. At the recent preliminary hearing, John McQueary's version of the events seemed to square more with those of Curley and Schultz than with his own son's. Dranov will reportedly contradict McQueary, and Paterno's statement after his firing suggests he'll do likewise.

Second, McQueary's apparent lack of response initially to what he witnessed is devastating to his credibility. "I believed Jerry was sexually molesting him and having some kind of intercourse with him," he recently testified. And when asked by a defense lawyer if "the night that you say you saw this, well, on that night, did you think you saw a crime happening?" McQueary responded: "Yes, to me that is a crime, sir, yes." But if he didn't intervene, and never called the police, can he be trusted when he says he was clear in what he told Curley and Schultz?

Third, the night of the alleged abuse, McQueary says he told his father and Dranov what he'd just seen. According to the Harrisburg Patriot-News, Dranov testified to the grand jury that he asked McQueary three times if what he saw was sexual and the answer was no all three times. If that's what Dranov testifies at trial, how will a jury believe that nine or 10 days after the event McQueary was more sexually descriptive with Curley and Schultz?

Fourth, JoePa will not be a good prosecution witness. McQueary himself acknowledges that he did not provide graphic details to Paterno ("out of respect and just not getting into detail with someone like Coach Paterno"). He appeared in front of the grand jury for only seven minutes, but his limited words suggest his frailty as a witness. Though he confirmed McQueary said that what he'd seen was of a "sexual nature," how seriously could it have been presented when Paterno also said he was reluctant to intrude on anyone's weekend with a report?

For jurors to find Curley and Schultz guilty, here's what they will have to believe:

McQueary admits to presenting a sanitized version of what he saw to Paterno, but more than a week later provided graphic details to Curley and Schultz, who later minimized those same facts when asked about them before a grand jury.

I can't see a jury buying that.

Originally published in the Philadelphia Inquirer