PHILADELPHIA (AP) — The case against two Penn State officials accused of perjury in a child sex abuse case will come down to what an assistant football coach saw and what he said.
The coach, Mike McQueary, told a grand jury he witnessed former defensive coordinator Jerry Sandusky raping a boy in a campus locker room shower.
Former Vice President Gary Schultz and athletic director Tim Curley, who face a preliminary hearing Friday in Harrisburg, are charged with lying to the grand jury about whether McQueary told them that. They also are charged with failing to report the 2002 complaint to law enforcement.
Sandusky, 67, waived his preliminary hearing Tuesday on charges that he sexually abused 10 boys, but lawyers for Curley and Schultz vow that there won't be a repeat Friday. They plan to challenge the evidence and try to have the charges dismissed.
Prosecutors must show probable cause the two men lied and that the lies were intentional and material to the case. If a judge deems the prosecution has succeeded, the case would head to trial.
"Even though you've had some fairly celebrated folks convicted of perjury, it's a very tough charge to prove," said Temple University law professor Edward Ohlbaum. "You have to have a clear question, an unequivocal answer, and (prove) the defendant knew what he was saying was false."
McQueary's testimony is central to the case, and Sandusky's lawyer and others think he will have to testify Friday. His appearance would mark the first time he has testified in public about what he saw and heard inside the Lasch Football Building nearly 10 years ago.
McQueary told the grand jury he saw Sandusky raping the boy one Friday night before spring break. He said he called his father from his Lasch office, then left distraught. He and his father met with coach Joe Paterno the next day.
Paterno, in turn, told his boss, Curley.
Paterno, according to the grand jury report, told Curley that his graduate assistant had seen Sandusky "fondling or doing something of a sexual nature."
Schultz, who oversaw campus security, and Curley met with McQueary 10 days later. McQueary told them that he thought Sandusky had sodomized a young boy, according to his grand jury testimony, which the panel found "extremely credible."
Curley, though, denied that McQueary reported a rape or anything "of a sexual nature whatsoever," the report said. The athletic director described the conduct as "horsing around," the panel said.
Schultz was unsure of what he had been told, but denied the reported conduct included sodomy. He told the grand jury that he was left with "the impression that Sandusky might have inappropriately grabbed the young boy's genitals while wrestling."
The accounts continued to morph, according to the grand jury's outline, when the two university officials spoke to school President Graham Spanier. Spanier testified that he was told Sandusky and a boy "were horsing around in the shower."
Curley, 57, and Schultz, 62, face up to seven years in prison if convicted of perjury. The other charge is a summary offense, less serious than a misdemeanor.
Paterno might normally be expected to testify Friday also, given his place in the chain of information.
But the 84-year-old could be spared a subpoena due to his health. The longtime Penn State coach has begun treatment for lung cancer and re-fractured his pelvis in the six weeks since the scandal broke and he was fired from the job he held for nearly half a century.
It's unclear whether prosecutors could have his grand jury testimony read into the record.
State law on the use of such hearsay testimony at preliminary hearings has recently changed: It can be used to establish the value of a car or that someone lacked permission to drive it. But in Ohlbaum's mind, it's not clear if it can be used to bolster a perjury case.
"If I'm the prosecutor, I'm not going down that road," Ohlbaum said Thursday.
Yet, in Pennsylvania, prosecutors must corroborate a lone witness's testimony with either physical evidence or a second person's testimony to meet the probable cause threshold, he said.
The attorney general's office declined to say who is on the witness list.
No one answered the door at McQueary's home Thursday. His father, John, declined comment to the Associated Press.
Tom Farrell, the attorney representing Schultz, and Caroline Roberto, a lawyer for Curley, declined to comment Thursday. In a statement earlier this week, they wrote: "Mr. Curley and Mr. Schultz look forward to the preliminary hearing to start the process of clearing their good names and demonstrating that they testified truthfully to the grand jury."
McQueary told the grand jury that he happened upon "rhythmic, slapping sounds" in the locker room showers and added that both Sandusky and the boy saw him there, according to a grand jury presentment. Authorities did not know the boy's identity when the report was issued, but may have learned it since then.
McQueary has become a lightning rod in the case, taking heat for not going to the boy's aid or immediately calling police. In a recent email to friends, he went on the defensive, saying he made sure the abuse stopped and went to authorities.
Defense lawyers would no doubt challenge McQueary about his more recent statements. Local and campus police have said they received no such complaint.
Meanwhile, the Patriot-News of Harrisburg has reported that McQueary's story changed when speaking in 2002 to Dr. Jonathan Dranov, a family friend. The newspaper report cited a source said to be familiar with Dranov's testimony.
"If this information is true, and we believe it is, it would be powerful, exculpatory evidence and the charges against our clients should be dismissed," Roberto and Farrell said in their statement.
The Associated Press was unable to reach Dranov this week at his home and office.