THE BLOG
11/16/2011 01:55 pm ET Updated Jan 16, 2012

OOPS! Untouched: How The Penn State Pedophile Scandal Continues To Grow

Most lawyers who have ever had a role in an alleged child abuse case were stunned by the bail set in the Jerry Sandusky child molestation charges. The judge who is also in her spare time an Of Counsel to a local law firm set $100,000 bond for him with no security for 40 counts related to serial child sexual abuse. Sandusky, who along with Joe Paterno had a saint-like reputation in the local community, was also the chief fundraiser for years for a children's charity that he started, The Second Mile. In fact, it is reported now that his consulting fee from 2001 to 2009 was nearly a half a million dollars a year. So much for the selflessness of Jerry Sandusky raising money for needy kids. He had both a clear financial and an alleged perverted sexual motive for his charitable face. Apparently even though his money making endeavor had to be known to many within the charity organization, and his sexual allegations known to many other in Penn State, his public adoration remained untouched. So Sandusky who is Caucasian and who clearly does not fit into the Occupy Wall Street (OWS) movement, obtained bail at essentially no financial cost to himself. Having prosecuted sex crimes, represented victims of sex crimes in civil matters and reviewed a number of cases surrounding alleged child sex crime abuse that ultimately ended in wrongful convictions, I can comfortably say that the poor person or the inner city minority from anywhere in the country charged with far lesser crimes with far lesser evidence would usually see the inside of the hoosegow, the clink, the jail cell, the slammer or whatever word you want to give the loss of freedom until at least the trial date.

This case highlights the question of whether judges should automatically be considered to be acting correctly. After all, for every wrongful conviction there was a judge in the courtroom. But that is another far-reaching issue for in-depth discussion at another time. But then as a learned acquaintance of mine who serves on a board of a women's crisis center commented to me- "the plot sickens." We learned lately that the judge was a volunteer for the The Second Mile. Moreover she and her husband donated to it. Because of her involvement, in my opinion she had a vested interest in making sure The Second Mile reputation remained unscathed. The judge probably did not want to believe that Sandusky, who was one of the linchpins in developing the Penn State defense and the founder of the charity she obviously cares for, was a pedophile. But assuming she never had significant contact with him, and I am assuming that because if she did her failure to disclose the information or on her own recuse herself, makes her participation in the bail setting procedure more judicially questionable and possibly even reprehensible. If the judge had disclosed her relationships when the case was assigned to her the prosecutors would have had the opportunity to ask her to recuse herself if more information were publicly revealed in the hearing venue where universal disclosure may have been important. The failure to disclose would be the chant of the Greek chorus if this epic were a play permeating every corner. Furthermore, the judge imposed minimal conditions on the bail. No GPS monitoring ankle bracelet was ordered. Certainly the local public and neighbors concerned about their children would likely have wanted some restrictions. Did the judge even know the alleged pedophile lived next to an elementary school? That school is now taking precautions since usually a condition of a possible pedophile's bail is staying away from children.

Sandusky maintains his innocence and gave an interview to famed reporter Bob Costas saying: "I'm innocent of these charges." He admits he "horsed around," and further admits he showered and touched children but he claims he did not so so with the required improper sexual intent. In the law sexual intent or prurience is required to turn some contact into a crime. Obviously, Sandusky has had time to become well versed with the law. But whether or not his contact with children was for sexual purposes or not, that is not the issue for non-secured bail when one charge is rape of a child. Nor does it ameliorate the age-long failure to address Sandusky's action by any person or any entity.

I listened to an oral interview replayed on In Session television earlier this week of Thomas Day, a graduate of Penn State and someone intimately familiar with the Second Mile since he was a former board member of the foundation. He commented that he thought people just did not want to believe what was being said about Sandusky at The Second Mile. He thinks the same disbelief may have also occurred at Penn State. He is probably correct. Former Oklahoma coach Barry Switzer has publicly stated what much of the public feels."Having been in this profession a long time and knowing how close coaching staffs are, I knew that this was a secret that was kept secret. Everyone on that staff had to have known, the ones that had been around a long time." But because Sandusky was a storied cash cow for The Second Mile, and a figure in the historical veneration of the Penn State football program, many people just ignored the rumor and allegations. To do otherwise might have brought down a program or two, a coach or two, or even a legend or two.

To quote a presidential candidate: Oops. Now the CEO of The Second Mile charity has resigned. Only time will tell if the entity gets folded into another charity. Joe Paterno has been fired and his name removed from the Big Ten trophy. Young men who entrusted their college football playing careers to a revered person have been betrayed. And, of course, there are undoubtedly more child victims. As the scandal grows, unanswered questions multiply. It appears that Oops is a multi-decade long misplaced mindset that seems to have been purposely fostered by many.