Prosecutors Angered Over Kane's Sandusky Investigation

By Ben Present The Legal Intelligencer

March 5, 2013
Attorneys and agents from the Pennsylvania Attorney General's Office who were involved in the investigation and prosecution of Jerry Sandusky are "outraged" that Attorney General Kathleen Kane is keeping her promise to investigate the office's handling of the case, and some are prepared to go public if the review's findings are overly critical of their work or inaccurate, sources close to the Sandusky investigation said. "If they come after us, we're coming out publicly," said one source who held a leadership post in the office and was involved in the investigation. "We're proud of what we did and we didn't give a rat's ass about politics. We wanted to get a monster off the streets. And we did." Several sources interviewed who were involved in or close to the Sandusky prosecution were also unanimous in refuting Kane's central question in launching the internal investigation whether Governor Tom Corbett influenced the pace of the investigation for political reasons when he was attorney general of Pennsylvania. "Absolutely, categorically no," said another source close to the investigation, when asked if Corbett slowed the investigation. "But that's not a very interesting story, is it?" Corbett has publicly defended his office's handling of the case, noting that several big breaks, including a tip that led to key witness Mike McQueary, came only as Corbett was leaving. If anything, though, an indictment of Sandusky while he was an aspiring governor only would have earned him more votes, Corbett has said in more than one press statement. Other sources confirmed that, though Corbett had a "no surprise rule" in which he wanted to know of investigatory decisions that could morph into political landmines, he was not involved in the day-to-day decision-making and gave complete autonomy to the attorneys and agents working on the case. That said, Corbett would have welcomed the notoriety, they said. Sources did say that Corbett wanted to be kept apprised of the status of the investigation. It was also not his decision to put the case before a grand jury, sources said. That decision is a tactic that Kane has publicly said caused the investigation to take longer than it needed to.

Kane's aggressive stance on the Sandusky investigation was a campaign promise and political gambit that has been widely credited by political analysts as helping her win election as attorney general the first Democrat and the first woman to do so. In bringing in Widener University School of Law professor and former federal prosecutor H. Geoffrey Moulton Jr. to lead her review, Kane is following up on a promise that many say won her the election. Legal observers and attorneys familiar with Moulton have described him as having "unquestionable integrity." But several sources from the prosecutorial community said that many of their colleagues from across the state are "outraged" that Kane would second-guess a body of work that eventually led to convictions on 45 of 48 counts and put Sandusky, the longtime Penn State defensive coordinator, behind bars for the rest of his life. Kane declined to comment on the probe for this story.

TRIED TO CANCEL TALK?

The sentiment among prosecutors came to a head at the state's District Attorneys Association mid-winter meeting last month, where, according to several sources, Kane attempted to cancel a seminar given by the Sandusky trial's two prosecutors Joseph E. McGettigan and Frank G. Fina. The focus of the talk was how to successfully prosecute high-profile cases and deal with media scrutiny. Kane has denied that, saying she made appropriate inquiries into the scope of a presentation on a case her office is still handling. However, according to several sources who spoke with The Legal on the condition of anonymity, here's how the events leading up to the seminar played out: The week before the talk, sources said, Kane directly contacted Shawn Wagner, the Adams County district attorney and president of the District Attorneys Association, and convinced him to cancel the event, citing the appellate status of the case as her chief concern. However, after Fina and McGettigan addressed the association's leadership in what sources called an "impassioned" discussion February 3, Super Bowl Sunday, the board (including Wagner) unanimously overturned the decision. Fina and McGettigan, who both declined to comment for this story, both gave the presentation February 6. Reached for comment, Wagner said the seminar was initially canceled due to a "miscommunication"about what Fina and McGettigan were going to cover. It was reinstated when their actual topic was made clear. According to Wagner, the presentation was first captioned "Lessons Learned in the Sandusky Case." Declining to give specifics for the attorney general's reasoning, Wagner said Kane had expressed "concerns" about the topic and questions about whether McGettigan could be involved, as he was still a representative of the agency. She never asked Wagner to cancel it and never insisted that McGettigan not speak, Wagner said.

"After my conversations with the attorney general and after a discussion with other members of the District Attorneys Association, we agreed we would not go forward," Wagner said. "That was not a result of the attorney general saying 'don't go forward.'" Kane also denied that she made efforts to stymie the seminar. A spokesperson for her office said that Kane became aware of the presentation after she was sworn in, and correctly looked into it. "Attorney General Kane correctly made inquiries to understand the scope and nature of the seminar and to ensure that the presentation would be in compliance with grand-jury secrecy rules," said Ellen M. Mellody, the communications director for the Office of Attorney General. "Stating that Attorney General Kane 'attempted to cancel' the seminar is not accurate." A number of Legal sources, however, said that Kane had tried to stop the presentation; allegedly she expressed concern to Wagner that the talk could jeopardize the appeal. Those same sources refuted the notion that the presentation would affect the office's success in opposing Sandusky's appeal, instead offering the same word in explaining why Kane would try to cancel such a talk: Politics. One source present at the event, speaking on the condition of anonymity, said the "sentiment was overwhelming" among prosecutors who reported being "outraged" that Kane was investigating such a successful prosecution. "You don't do this," the source said. "You don't investigate successful cases."

HOW THE INVESTIGATION PLAYED OUT

The Office of the Attorney General received the Sandusky case on a conflict referral in the spring of 2009. The district attorney of Centre County at the time, Michael Madeira, kicked the case to state prosecutors because his wife's brother was one of Sandusky's adopted sons. At the time, Pennsylvania State Police had already been investigating Sandusky and continued to do so, parallel to the AG's investigation. There was only one victim at that point, a Clinton County teenager who first made allegations against Sandusky to the local Children and Youth Services bureau in 2008. The victim, Aaron Fisher, was long known in court papers as Victim 1, but went public after Sandusky's trial last June. State Police continued to investigate Sandusky as the AG's office launched a grand jury investigation in the late spring of 2009. According to sources close to the investigation, the state troopers proposed the idea of bringing charges on Fisher's account alone. The team from the Attorney General's Office held off for several reasons. For one, sources said, Fisher was a wreck. Not uncommon for victims of sexual abuse, details of Fisher's story changed more than once and his first round of testimony before the grand jury did not give prosecutors enough foundation for charges, sources

said. During his second round of testimony, sources said, and Fisher's book, Silent No More, confirms, the teenager passed out on the witness stand. Slade McLaughlin, Fisher's attorney, said the core of his client's story that Sandusky molested him never changed. "If you know anything about sex-abuse victims, and I know a lot about them, they are very, very reticent to tell everything all at once," McLaughlin said. "Initially he had a lot of concerns." Setting Fisher's statements aside, he was still just one witness. "We had one kid," said a source involved in the investigation. "And we're going to put him up against Jerry Sandusky, the saint?" By most accounts at that time, Sandusky was still the man who started a renowned charity to help troubled youths, not a serial molester who preyed on them. And he was tied to Penn State football, a program with a sterling reputation, a worshipped leader in former head coach Joe Paterno, and unyielding support from a loyal following. There was no getting it back if the office arrested Sandusky and turned out to be wrong. "If you investigate a guy like Sandusky publicly and you're wrong, you don't get that genie back in the bottle," another source said. Convinced there were more victims, prosecutors declined to bring charges solely related to Fisher. Sources called the decision a no-brainer for the office. The investigation picked up speed, by pure coincidence, according to sources involved, as Corbett was leaving. Two big things happened right at that time, sources said. First off, investigators were led to McQueary, the former graduate assistant who claimed he saw Sandusky rape a boy in a Penn State locker room in 2001, in the fall of 2010. Interviewing McQueary led investigators to Penn State, turning the case from a suspected serial child molester to one featuring possibly serious institutional implications. Also, being able to tell suspected victims that investigators had an eyewitness, sources said, emboldened them. "When you could say to these kids, 'we have an eyewitness who saw Sandusky in the shower assaulting a boy,' that would flip the switch," one person in the investigation said. "That was one common thing with all these kids the shower. We had a shower incident with every single kid except one. That was a can opener." Also around that time, investigators made their way to a man known as Victim 4, who, just based on his trial testimony, was the most abused victim in the case. Unlike Fisher, Victim 4 was from around Penn State. He was able to rattle off names, addresses and phone numbers, sources said. One source involved in the investigation described the victim as a "machine." Within a year of those breaks, the office had a total of six identifiable victims, and two more stemming from eyewitness accounts. The latter helped to dispel Sandusky's main defense that his accusers were conspiring for financial gain. In November 2011, the office brought charges not only against Sandusky, but

also against two high-ranking administrators who were alleged to have failed to report McQueary's allegations and then to have lied about it to the grand jury. Sources said the late breaks turned the case from a loser among a slew of other high-profile acquittals (Casey Anthony, Michael Jackson, Douglas Kennedy and Robert Blake) to a winner that would redefine the Pennsylvania Office of the Attorney General, an office that'd had its ups and downs over the years. "It's like pushing a snowball down a hill," said the source. "We were kind of stuck in the smoke for a year or two there. All of sudden we started getting some movement and breaks. "And that's when your case got stronger and more prosecutable." Kane has declined to comment on her review. A spokesperson from her office said that Kane said she would not comment on the probe until it was complete. Mellody gave this emailed statement Monday: "At the time Geoff Moulton was appointed special deputy attorney general charged with assisting Attorney General Kane with her investigation regarding the Sandusky prosecution, the Office of Attorney General indicated that it would have no further comment on the matter until the investigation was complete." Mellody said, "The Office of Attorney General's position has not changed and there will be no comment." Fisher's attorney McLaughlin, however, defended Kane's making good on her promise to review the investigation, saying there appears to be enough evidence just from what is publicly known about the investigation, namely its timeline, to warrant a review. "There's more than enough to justify an investigation here to see was there some BS here? Was there a coverup?" McLaughlin said. "If there was a basis for the investigation languish, then why would there be any concern about there being a spotlight shone on it?" "You can't complain about transparency," he added.