It is comparatively easy to cross-examine the cooperating witness. One who is involved with the conspiracy. Who committed crimes. One with a substantial history of crimes, deception and dishonesty. Who has cheated and defrauded regular people like the jurors. The jury has little sympathy for them, and cheers on your exposure of his ugly character defects.

The key is to expose character. A person who has never been trusted to tell the truth will hardly start now, not with the obvious benefits for his testimony, testimony that is bought with the promise of a reduced sentence or some other redemption. The witness is so obviously producing a story to warm the heart of his prosecutor.

Far more difficult is the questioning of the bystander. A neutral witness with no axe to grind, with no obvious benefit from testifying other than fulfillment of a civic duty. These witnesses can’t be shredded like cooperators. It is far too likely the jury will empathize with the witness and see us as overbearing bullies. These witnesses must be treated with respect, not hostility.

The bystander may be mistaken or confused but rarely is he lying. Our job is to expose to the jury how the witness got it wrong, how the witness misunderstood or misinterpreted the event. Their only defect being the fallibility of their human memory. Is it a simple mistake? Has his memory been polluted by after-learned information? Has he been mesmerized by public attention?

Penn State assistant football coach Mike McQueary is a hybrid witness. He is not a cooperator since he was not engaged in crime with Sandusky. Nor is he an innocent bystander. He has motives to color his testimony. He may have a non-prosecution agreement to excuse his inadequate report of the crime. Or he may just be testifying to save what little remains of his reputation. But he is not an outright liar. And that makes him a dangerous witness for the defense.

Two senior Penn State officials, Timothy Curley and Gary Schultz, are charged with failing to report McQueary’s story about Sandusky to the authorities and later lying under oath to the grand jury. The entire basis of the charges against them arises out of a conversation nine years ago between them and McQueary.

This is how he testified at the preliminary hearing about telling the executives: “I described it was extremely sexual and that some kind of intercourse was going on. There’s no question in my mind that I conveyed to them that I saw Jerry in the showers, and that it was severe sexual acts, and that it was wrong and over the line.” If the jury accepts this statement then they are doomed. If there is any doubt about the words he used, then there is reasonable doubt.

The Pennsylvania attorney general’s office, in charging Curley and Schultz, said the men had testified under oath that McQueary had never told them he had seen anything as serious as a sexual assault, only that Sandusky might have been “horsing around” with a young boy in the shower. In his grand jury testimony, Curley said McQueary never told him anything more serious had happened than that Sandusky and the boy were “wrestling” and “horsing around.” Curley testified that he never reported the 2002 episode to the police, only to Spanier. Asked why, he told the prosecutor, “I didn’t think it was a crime at the time.”

If McQueary’s report to the defendants was ambiguous, and up to then they had no reason to believe that Sandusky was a child molester, there is no basis for a conviction. However if the jury believes McQueary that he made it clear that Sandusky was raping a 10-year-old boy, then they will be convicted.

What makes his cross-examination challenging is that he is apparently the entire case against them. Sandusky has loads of other witnesses so McQueary is of lesser importance and there is a big difference between these parties on how McQueary is handled. Sandusky has to call him an outright liar which seems implausible. Curley and Schultz are in a far different position and all they need to do is throw some doubt on McQueary’s memory. This is a far more subtle job and one that interests me.

We don’t have the grand jury transcript or the preliminary hearing transcript so I have to rely on quotes from news articles.

McQueary testified he entered the locker room around 9:30 pm seeing Sandusky with his arm around the boy’s waist. He said he peeked into the shower several times. The boy’s hands were against the wall he was facing.

“I believe he was sexually molesting the boy.”
“I did not see insertion nor was there any protest, screaming or yelling.”
“I heard rhythmic slapping sounds, two or three slaps that sounded like skin on skin.”
“I know they saw me. They looked directly in my eye, both of them.”
Sandusky’s position was “sexually oriented,” but he couldn’t tell with “100% certainty it was forced.”
“I believed Jerry was having sexual intercourse with him, there was no protest or yelling, so can’t say for sure.”
I was “shocked, horrified, not thinking straight. I was distraught.”
He then retreated to his office. He didn’t call the police because “it was delicate in nature.”
“I tried to use my best judgment. I was sure the act was over.” He never tried to find the boy.
He called his father and told him: “I just saw coach Sandusky. What I saw was wrong and sexual.”
Normally small changes in the story are not fatal. Human memory is fallible. But the executives are charged based on what he said to them. If there is any ambiguity or vagueness or doubt what he said to them, it is reasonable doubt.

Here are some of the obvious problems with his testimony:

In the grand jury report it claimed McQueary “saw a naked boy . . . with his hands up against the wall, being subjected to anal intercourse by a naked Sandusky.”
But McQueary testified at the prelim that he was not sure whether it was sexual intercourse.

McQueary apparently made no mention in the grand jury about intervening to rescue the child, but he has inferred that he forced Sandusky to stop. He then called his father, with whom he had a close relationship, for advice on what to do next.

After he called his father, he went to Paterno’s house the next morning. He admits he didn’t tell Paterno any of the graphic details. He admitted to changing his description of what happened when speaking to Paterno. Enough so that Paterno didn’t believe a crime had occurred. Why was his story different in the telling between Paterno and the executives?

According to the grand jury presentment Paterno was not sure what to make of McQueary’s report. Thus it had to be more ambiguous than he makes it now. Otherwise there would be no doubt.

McQueary, according to Paterno, seemed to be unsure of what he had seen.

Curly and Schultz testified at the grand jury that McQueary never relayed the seriousness of what he saw. What he told them sounds vague. “What he believed” sounds like he doubted it was sexual.

So these two plus Paterno say that his report was not detailed enough to cause them to take further action of some kind.

Then there is the issue of plausibility. How could a 10-year-old boy be subjected to anal intercourse by a large adult like Sandusky and not cry out in pain?

Another problem with McQueary:

The Harrisburg Patriot-News reported McQueary apparently told his friend Dr. Jonathan Dranov at the time that he did not actually see the assault. McQueary told Dranov that he heard “sex sounds” and a running shower before a young boy peered around the corner of the shower’s stall. McQueary said he then saw an adult arm reach around the boy’s waist and pull him out of view, before Sandusky emerged from the stall in a towel seconds later.

Dranov reportedly confirmed that McQueary denied three times seeing anything sexual in the shower. Dranov said he therefore advised McQueary to pass on his account to then-head football coach Joe Paterno, but not to contact police.

Also McQueary claims he sent an email to a friend that he reported it to the police but no record exists of this report.

McQueary said he, over the years, found it upsetting to continue to see Sandusky on the Penn State campus. “I personally found it troubling and not right,” he said. Yet he took no further action. And worst of all, young boys, who had tough enough lives already, were further damaged by a predator who should have been arrested and incarcerated so he couldn’t harm others.

All these seeming inconsistencies are ripe for cross-examination. McQueary will have a hard time reconciling them. And of course a good cross-examiner won’t give him the chance to explain.

Theory of the Case

Now we get to the real purpose of this post. This is a good example of when you must formulate a theory of the case. The cross examination is an important part, but only one part of your trial strategy. Memory is the theme. Changing recollections. Changing words. Leaving different impressions with different listeners. This has to be the driving force of the defense. The cross has to give the lawyer the ammunition. There must be some movement in his language. Some vacillation. Some change even if only a word. Without that there is no defense. You need to cause McQueary to use phrases like: I can’t be positive, but I think, or my impression is, or rather my belief is that, according to my best recollection, and the best I don’t remember or I am not sure.

You start propounding the theory right at the voir dire asking questions like: “Do you find that your memory is better at the time of the event happening or
later?” That will get the jurors talking on their memories. No one ever says it got better.

Throughout the case you keep hammering the theory and use themes about inaccurate memories. Then in the final argument you put all these pieces together. Out on the web I found this final argument by South Carolina attorney Virginia Vroegop astutely handling a credibility issue in a case between an elderly investor and her stockbroker:

“The thing that keeps striking me in this case is what a funny thing memory is. We sometimes want very much for things to be different than they really are. Something happens, we don’t quite remember all the details, there was something frustrating about it, and as time goes on we fill in those details and they change. And I think this is very much such a case. Remember that the [plaintiff and her husband’s] deposition testimony differed from each other. Now, a year later at trial, they each can explain those differences but now their trial testimony doesn’t quite match up. And ladies and gentlemen, it really is . . . just our memory process . . . .  We want things to be different than they really were, and over time our memory changes to fit what we want the facts to be.”

After detailing the differences between the depositions and the trial testimony and why they did not fit the objective evidence, Ms. Vroegop concluded with this wonderful example:

“If you have ever sat around the Thanksgiving dinner table with your family and tried to discuss something that happened when you were kids, you will know that people remember things differently, and it has a lot to do with how we want to remember the past event.”

And who hasn’t experienced that!