A lawyer explains Jerry Sandusky's sentence and Mike McQueary's lawsuit

Hello readers. October has been eventful one for Penn State, as Jerry Sandusky was sentenced to 30-60 years in prison, which essentially amounts to a life sentence. Also, last week, Mike McQueary sued Penn State for firing him under the state whistleblower law. I'll delve into each with help from my friend the inquisitive non-lawyer that I made up.

So Jerry Sandusky is going to spend the rest of his life in prison?

Yes, unless he has a successful appeal. But, as I wrote back in July, that's unlikely. Unless Sandusky lives to be 128, he will die in prison. He might have been sentenced to 30-60 years, but there is no way that he will only serve a minimum sentence if he is still alive come 2042.

So that's it? Nothing else is going to happen to him?

Well, his wife will be bankrupted by all the civil suits, if you want an extra measure of revenge. But rape is not punishable by the death penalty in Pennsylvania. And I know some of you on the Internet say you hope that Sandusky becomes a victim of prison rape, to which I say that retribution is an ineffective form of justice what with an eye for an eye leaving everyone blind.

But what if Pennsylvania changed it so raping a child were punishable by the death penalty?

That would violate the Constitution for two reasons. In 2008 the Supreme Court ruled that giving the death penalty for raping a minor is unconstitutional because it violates the Eighth Amendment's prohibition of cruel and unusual punishment. The Kennedy case also involved a particularly gruesome incident, so it's unlikely that ruling would be reversed for Sandusky.

Also, the Constitution prohibits ex post facto punishments. That is, you cannot make a law against something (or, in this case, increase the punishment for something) and apply it retroactively. This rule doesn't always apply in civil cases, but in criminal ones it does.

Guess that's it for Sandusky. What can you tell me about McQueary?

I can tell you that he is suing Penn State for violating the state whistleblower suit as well as defamation and misrepresentation. I can also tell you that the defamation and misrepresentation suits are unlikely to succeed, not in the least because the law firm that McQueary hired specializes in employment law. If he were truly serious about those claims then he probably would have hired a different firm. Though the claims themselves are pretty flimsy, the choice of law firm does indicate which claims he's serious about.

McQueary's attorneys are trying to throw up as many allegations as possible and seeing what sticks, trying to make life hard on Penn State and hoping they settle. The meat of this lawsuit is the whistleblower allegation.

OK, but you need to tell me what a whistleblower suit is.

We do not want employers to punish employees who report them to the authorities or testify against them, because we want people to tell the truth in official investigations without fear of retribution. That's why in Pennsylvania an employer may not discharge, discriminate or retaliate against an employee when the employee is requested by an appropriate authority to participate in an investigation or reports them to an appropriate governmental authority. Basically, the employer has to act like nothing happened.

And Penn State didn't act like nothing happened?

McQueary's complaint certainly makes a good case that he was discriminated against after participating in the grand jury investigation. He was the only Penn State assistant coach who was not given a chance to reinterview with Bill O'Brien. As soon as Sandusky was indicted McQueary lost his university privileges. Penn State is paying Tim Curley's and Gary Schultz's legal bills but not his. This all points to a pattern of discrimination against him, and the main causal link to this discriminatory treatment was his participation in the Sandusky investigation.

So what does McQueary get if he wins this suit?

He's asking for damages that he already incurred (loss of pay, early withdrawal from his retirement account, legal fees), front pay and other damages resulting from his termination. If McQueary can show that the termination caused him damage in his search for a new job he might get a decent award from a jury, but it will be hard for him to receive front pay, because Bill O'Brien mostly brought in his own coaching staff even though he interviewed McQueary's colleagues.

But McQueary should have gone to the investigators 10 years ago! Why does he get to use this law to protect himself now?

Well, now you run into the problem that a lot of laws have. They were written by people who have trouble predicting the future. That's a problem common to all of humanity, so I'm not singling out state legislators here (though as a New York resident I do not hold state legislators in high regard). When Pennsylvania wrote this law they could have created an exception for an employee who only participated in an investigation after not reporting the underlying crime to authorities in a timely manner. But it is hard to foresee an unjust situation quite like this one.

It's October, so I know you're burned out on politics and want to stick your head in the sand for a month so you never hear Mitt Romney singing off-key again. But this is one of those moments where you need to realize that state legislatures, those bottom of the ticket races that you mostly either ignore or write in Batman for, have real-life effects on things that you have an opinion on. In this, as in many cases, the cure for outrage is greater civic engagement.

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