John Baer: A question for the grand jury

Posted: November 21, 2011

OF MANY QUESTIONS hanging amid the shock and revulsion related to the Penn State child-sex scandal, here's one getting my attention:

Why, in a case of an alleged child predator, wouldn't a grand jury recommend indictment on strong evidence from one or two victims rather than wait, as it did, until recommending charges linked to eight victims?

"I'm not going to comment about that specifically," says Nils Frederiksen, spokesman for Attorney General Linda Kelly, whose office runs grand juries.

Gov. Corbett was attorney general when the investigation began in 2008, when that office got the case in 2009 and when the grand jury was impaneled last November. His press secretary, Kevin Harley, didn't respond to an email asking about grand-jury action.

Too bad. To me, it's an interesting question.

If the grand jury had acted sooner, prodded by prosecutors, even prodded by a former attorney general who became governor (and therefore a Penn State trustee), an accused predator would have been identified sooner and, potentially, further abuse averted.

If a grand jury was investigating an alleged serial killer, for example, or a terrorist, and had evidence to charge, would it wait until it had more?

I don't think so. At least I hope not.

Child-abuse cases are tough to build. One accusation might not hold or be based on a single individual out to bring down a person in power. Charges on only one or two instances could discourage other victims from coming forward.

And, given that this involves legendary football coach Jerry Sandusky and others accused in what appears to be a Penn State cover-up, this grand jury no doubt was handled with extreme prosecutorial care.

I understand. But did care for the case outweigh care for other children?

At what point (victim 2, 3 or 4?) was there enough solid evidence to suggest a predatory pattern that ought to have been stopped or at least shared with the community in which a possible predator lived?

Remember, additional charges can be filed later. In fact, the A.G.'s office says its investigation is ongoing, suggesting more charges will be filed.

Corbett yesterday told reporters that people don't understand the time required to develop witnesses and build a case.

But my question goes to the grand jury, a body cloaked in secrecy. Didn't it have a moral/ethical responsibility to act sooner?

Geoffrey Hazard is a national figure in legal ethics. He taught at Yale Law, Penn Law and is now at the University of California Hastings Law School in San Francisco. I asked him about such responsibility.

"That was one consideration and an important one, but a competing consideration was that Sandusky would deny everything and could fight a charge that was based only on initial and partial evidence of his conduct," Hazard said.

"He has powerful allies or apologists who had very strong personal interests in keeping the case very 'small.' In the phrase, if you are going to strike at a king [Penn State establishment] you must aim to kill. What it will take to kill is unavoidably uncertain. Colin Powell, concerning war, said you should do so only when you have overwhelming force. The same analysis applies in this kind of situation."

So things take time for various reasons, including prosecutors' interests in the strength of their case.

I get that. But Sandusky, who proclaims innocence, faces 40 counts of abusing boys as young as 7 dating back to 1994.

Seems to me a grand jury could be pressed to act on, say, 20 counts, or meet more often than its scheduled one week a month, or consider risks to other children more than considerations to charge with overwhelming force.


For recent columns, go to

philly.com/JohnBaer. Read his blog at www.philly.com/ BaerGrowls.

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