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In less than three months, Joe Paterno went from one of the most revered figures in sports and a Pennsylvania institution to being implicated in a scandal, terminated from the job he had held for generations, and excoriated by the media to a historical figure who is no longer with us. He passed away over the weekend at the age of 85. A memento mori indeed.
I did not attend Penn State, so I’ll leave the remembrances to others. Paterno died, however, amidst a national scandal, two criminal prosecutions, and likely more than a dozen civil lawsuits to be filed. In those same three months the legal issues surrounding the Sandusky indictment have already advanced considerably, and now there’s a new question: what effect will Joe Paterno’s death have on the ensuing criminal and civil litigation?
I was quoted in a Reuters article that addressed those issues:
Because Paterno was not believed to have witnessed any purported abuse, his testimony would not have been crucial to Sandusky trial, said Paul Callan, a former prosecutor and criminal defense attorney.
But his death could set back the criminal case against Curley and Schultz.
“The Confrontation Clause (of the constitution) guarantees that criminal defendants will have the right to confront and cross-examine the witnesses against them at the time of trial,” Callan said. “No defense attorneys were present at the grand jury proceedings to do such a cross-examination.”
Max Kennerly, a Philadelphia trial lawyer who has followed the case, said Paterno’s death was unlikely to alter any civil litigation being contemplated by Sandusky’s accusers. If any were considering suing Paterno, they could just name his estate.
“Death doesn’t change your status as a party,” Kennerly said.
It wasn’t my intent to sound callous, but, in the legal world, death typically doesn’t break a case except where either a criminal defendant dies (and there’s no point in going forward) or the sole complaining witness against a criminal defendant dies (“no witness, no case” is the disturbing motto sometimes tied to witness intimidation or witness murder prosecutions, like Paul Bergrin’s). Here, Paterno wasn’t a defendant and, as far as anyone has said publicly, he didn’t witness any of the sexual assaults nor did Jerry Sandusky make any incriminating remarks to Paterno.
Thus, the criminal cases are roughly the same, as are the civil cases. Anyone intending on suing Paterno personally will now just name his estate instead.
That said, I find it unlikely any lawyer for the victims would name him or his estate. That’s not to say the sexual assault victims couldn’t name Paterno. If they had probable cause to believe that his negligence was a cause of their victimization, they could certainly name him personally in the lawsuit. But, in all likelihood, Penn State will assume responsibility for everything Paterno did, rightly or wrongly. There is no genuine dispute that, whatever Paterno did or did not do, he did it as an employee at Penn State, and so Penn State remains liable for it.
The real issues are evidentiary. Whatever JoePa was going to say at the criminal trial and in the civil depositions and civil trials, he’s not going to say any of it anymore. His testimony in front of the grand jury was, as Paul Callan notes, entirely one-sided. He was never exposed to any cross-examination by Curley or Schultz’s lawyers.
The bigger problem for Curley and Schultz, however, is that he probably would have been their best witness.
We know now that Paterno was not indicted, but, at the time he testified in front of the grand jury, Paterno would not have known that nor would he have even known what avenues the prosecutors were pursuing. Thus, his lawyers’ likely advice to him, which I presume he heeded, was to keep his answers as short and direct as possible. When you’re testifying in front of the grand jury, and you’re wondering if you are going to be served with an indictment at some point based on your testimony, you don’t exactly go out of your way to defend everyone around you. You say exactly what you need to say to fairly answer the question and nothing more.
In contrast, at trial, Paterno may have felt he was defending his own legacy by defending Curley and Schultz, and so likely would have gone on at length to support their version of events. Curley and Schultz have now been denied that opportunity, and instead can at best only rely on the same testimony by Paterno at the grand jury that ended up getting them indicted anyway.
The civil case is still on balance the same, but the tactics change. There’s an old saying among trial lawyers about “banging the empty chair,” in which either the plaintiff or defendant’s lawyers point the finger at someone who isn’t even present for the trial and say that that person either is to blame for everything, could explain everything, or would be able to fit all the pieces together. With Paterno’s death, it’s likely that both sides — the lawyers for Penn State and the lawyers for the molestation victims — will argue to the jury that Paterno’s testimony, had he been around to give it, would have been helpful to them.
Anyone interested on the really technical side should look at Pennsylvania Rule of Evidence 804 (“Hearsay Exceptions; Declarant Unavailable”). All of Paterno’s prior statements, including his grand jury testimony, are hearsay; the question is if any of the exceptions apply. The Pennsylvania Supreme Court’s opinion in Heddings v. Steele, 526 A. 2d 349 (Pa. 1987), discusses many of these issues at length:
Hearsay is an out-of-court statement offered into evidence to prove the truth of the matter asserted. A hearsay statement lacks guarantees of trustworthiness fundamental to the Anglo-American system of jurisprudence. Perhaps such a statement’s most telling deficiency is it cannot be tested by cross-examination. According to Dean Wigmore, cross-examination is “beyond any doubt the greatest legal engine ever invented for the discovery of truth.”Nor is the declarant under oath when the out-of-court statement is uttered. This court has long recognized the oath requirement as a further assurance of reliability.Out-of-court declarations also deprive the trier of fact of an opportunity to examine the demeanor of the declarant. Moreover, an in-court declarant may be impressed with the solemnity of the proceeding and may be reluctant to lie in the face of the party against whom the statement is directed. The confrontation clauses of the federal and state constitutions, U.S. Const. amend. VI; Pa. Const. art. I, § 9, are manifestations of these beliefs and attitudes.
This Court has long adhered to the principle that the use of hearsay evidence is to be discouraged, and our policy against its use is generally recognized as particularly strong. As stated by Mr. Justice Musmanno:
The primary object of a trial in our American courts is to bring to the tribunal, which is passing on the dispute involved, those persons who know of their own knowledge the facts to which they testify. If it were not for this absolute sine qua non, trials could be conducted on paper without the presence of a single flesh and blood witness. However, with such a pen-and-ink procedure, there would be no opportunity to check on testimonial defects such as fallacious memory, limited observation, purposeful distortions, and outright fabrication. The great engine of cross-examination would lie unused while error and perjury would travel untrammeledly to an unreliable and often-tainted judgment.
To insure a party the guarantees of trustworthiness resulting from a declarant’s presence in court, a proponent of hearsay evidence must point to a reliable hearsay exception before such testimony will be admitted.
We’ll see how this all plays out. In the meantime, my thoughts go out to Paterno’s family and to Sandusky’s victims, for whom tributes to Paterno’s life and the public discourse around it may set back the healing process even further.