By MARK SCOLFORO, Associated Press
HARRISBURG, Pa. (AP) — Pennsylvania prosecutors said Monday they now believe the alleged locker-room shower assault of a boy by Jerry Sandusky that ultimately led to football coach Joe Paterno's firing took place a year earlier than they first claimed, prompting attorneys for two Penn State administrators call for dismissal of one of the charges.
The attorney general's office said in a court filing that investigators have concluded the alleged attack took place around Feb. 9, 2001. Previously filed court documents, including a grand jury report issued before the former Penn State assistant coach's arrest in November, dated it March 1, 2002.
Then-graduate assistant Mike McQueary has said he complained to Paterno of seeing the boy, described in court records as "Victim 2," in the shower naked with Sandusky.
He testified in December that he believed Sandusky was molesting the boy and "having some type of sexual intercourse with him," but added he was not "100 percent" certain they were having intercourse because of his vantage point.
Penn State's trustees have said they fired Paterno as coach partly because of his response to the incident. Paterno reported the matter to administrators Gary Schultz and Tim Curley, which trustees have called "his minimum legal duty" and "a failure of leadership." Paterno was fired as coach in November. He died in January of lung cancer.
Curley, the athletic director who is on leave, and Schultz, a university vice president who has retired, are fighting allegations that they lied to a grand jury and failed to properly report suspected child abuse. Defense attorneys Caroline Roberto and Tom Farrell issued a statement Monday night accusing prosecutors of filing charges in the case before knowing the facts.
"Now, it is clear that Mike McQueary was wrong in so adamantly insisting that the incident happened the Friday before Spring Break in 2002," their statement said. "Whether or not Mr. McQueary's insistence was the result of faulty memory, or questionable credibility, there is no dispute that the statute of limitations has expired on (the failure to report charge), and it will be dismissed."
The judge in the case has issued a gag order prohibiting lawyers from both sides from speaking about the Sandusky case.
Scranton defense lawyer Joseph D'Andrea, who is not involved in the Sandusky case, said the one-year time change may not affect the prosecution, assuming all other relevant facts remain consistent. He said recollections of dates over a 10-12 year time span are naturally imperfect.
"If all the other facts match up to be identical, I think it's just an error without any harm for the prosecution," D'Andrea said. "However, if there are other inconsistencies, it gives the defense a reason to create some doubt about the credibility, sincerity, honesty and true recollection of what McQueary had to say."
Reached by phone, McQueary's father John McQueary declined comment on his son's behalf.
The prosecution filing Monday comes ahead of a hearing on Wednesday in Bellefonte regarding defense subpoenas and any remaining disputes over what material must be disclosed to the defense.
Sandusky, 68, awaits a June trial on 52 criminal counts related to alleged sexual abuse of 10 boys over 15 years. Sandusky has denied the allegations against him.
Monday's filing said only that investigators relied on "specific and authenticated findings" to conclude the shower incident occurred in 2001. Prosecutors have said they don't know who the boy was.
Sandusky defense attorney Joe Amendola has previously maintained the 2002 date was incorrect.
In a March 25 story, Amendola told The Associated Press that a young man had come forward to him to say he believed he might be the person described as Victim 2 and that Sandusky had not abused him. Amendola said the young man later obtained a lawyer and cut off contact.
Amendola said Sandusky has told him he knew the young man in question but was convinced the date was in 2001, and at that time he had offered to help Curley locate the boy.
Also Monday, Amendola announced that Sandusky will not attend the Wednesday hearing at the Centre County Courthouse in Bellefonte.
Judge John Cleland is expected to address requests to dismiss subpoenas sent to three school districts and two child welfare agencies in central Pennsylvania. A defense subpoena sent to Juniata College is also expected to be discussed.
The state departments of Public Welfare, Corrections and Labor and Industry on Monday filed motions that indicate they have received defense subpoenas, but want Cleland to seal their motions to have them thrown out, to prevent the possible identification of the alleged victims.
Associated Press writers Mike Rubinkam in Allentown and Genaro Armas in State College contributed to this story.
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