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At Sandusky hearing, a lingering question: Who was the boy in the shower?

BELLEFONTE, Pa. - Seeking to overturn their client's conviction, Jerry Sandusky's lawyers focused Monday on a lingering mystery from his 2012 prosecution:

Former Penn State coach Jerry Sandusky arrives at the Centre County Courthouse in in Bellefonte, Pa.  on Monday. He is seeking to gave his child sex abuse conviction overturned.
Former Penn State coach Jerry Sandusky arrives at the Centre County Courthouse in in Bellefonte, Pa. on Monday. He is seeking to gave his child sex abuse conviction overturned.Read moreAP

BELLEFONTE, Pa. - Seeking to overturn their client's conviction, Jerry Sandusky's lawyers focused Monday on a lingering mystery from his 2012 prosecution:

Who was Victim 2?

Who was the boy that graduate assistant Mike McQueary said he saw Sandusky rape in 2001 in a locker-room shower - an accusation that not only helped put Sandusky away, but brought down head football coach Joe Paterno, and led to charges against former Pennsylvania State University president Graham B. Spanier and two others?

Prosecutors say they still don't know.

Sandusky's lawyers insist that the prosecutors do, and argued on the second day of an appeal hearing that the answer is key to his request for a new trial.

Pointing to a 29-year-old man paid a settlement by the university after claiming he was Victim 2, appellate lawyer Al Lindsay said prosecutors and Sandusky's defense team knew the man's identity well before the 2012 trial.

Neither side chose to call the man to the witness stand, Lindsay maintained, because each believed his testimony could be disastrous to its case.

Under questioning Monday, the lead investigator in the case flatly rejected Lindsay's thinking.

The accuser "was not credible," said Anthony Sassano, an agent with the Attorney General's Office. "We all arrived at the same conclusion."

The shower assault became a pillar of the investigation of the former assistant coach and had wide impact.

Even without corroboration, McQueary became a star witness. His claims that he told Paterno what he saw led to the iconic coach's firing. Paterno's own statements to investigators about what he reported to Spanier and two other administrators led to the pending criminal case against them.

The debate over Victim 2 is only one part of Sandusky's appeal, in which the former assistant coach also claims his trial lawyers provided a woefully ineffective defense and lacked the time, expertise, and resources to fairly represent him.

The state Attorney General's Office contends those claims are a last-chance ploy from a 72-year-old man otherwise likely to die in prison, and challenged Lindsay's assertion Monday that prosecutors were afraid to call Victim 2 at trial.

No one doubts that the 29-year-old - whose name is being withheld by the Inquirer because of the allegations - knew and had a relationship with Sandusky. Investigative reports filed with the court detail the boy's participation in the Second Mile, the Sandusky-founded charity for troubled youth, after his parents' 1996 divorce.

Like other victims, he found himself invited to Penn State football games and sleepovers at Sandusky's house.

And while sources close to the case have said they believe the man may have been abused as a child by Sandusky, they have never believed he was the boy McQueary saw.

In granting Sandusky an appellate hearing in June, Senior Judge John M. Cleland sought to limit arguments surrounding Victim 2's identity.

He barred Lindsay from using the hearing to explore if the 29-year-old man's statements are true. Instead, the judge has directed Sandusky's lawyer to focus on whether prosecutor Joe McGettigan lied to jurors four years ago when he told them that the identity of the boy in the shower was "known only to God."

Monday's testimony was supposed to answer the question of whether McGettigan believed the man was the victim McQueary had described.

But what emerged as Sassano, other investigators, and the 29-year-old's lawyer cycled through the witness stand was the first full account of a lesser-known drama that played out behind the scenes of one of the most chronicled sex-abuse trials in history.

Investigators first approached the man who now says he is Victim 2 well before Sandusky was charged in 2011.

At the time, he insisted he had never been abused. In fact, at Sandusky's urging, he wrote a letter to the State College Centre Daily Times after the former coach's arrest, praising Sandusky as a mentor to many young men.

He also offered to testify as a defense witness, telling Sandusky's trial lawyer, Joseph Amendola, that he had been the boy in the shower, that he remembered seeing McQueary that night in 2001, and that nothing untoward had occurred.

But within a month, the man had retained a civil lawyer and changed his story.

His lawyer, Andrew Shubin, testified Monday that he never doubted his client was the Victim 2 described in Sandusky's grand jury presentment. But Shubin said he felt prosecutors on Sandusky's case were not interested in hearing him out.

"I believe that Mr. McGettigan did not want to pursue or wasn't curious as to whether the person I believe was Victim 2 was in fact Victim 2," he said.

Investigators said they had their own reasons to doubt the accuser. Several times between February and May 2012, they said, the man gave conflicting accounts of abuse.

First, he told investigators that Sandusky had abused him only on three out-of-town trips. Later, he said the former coach abused him only in Penn State's athletic building, where he said he had been sexually assaulted 10 times.

He never detailed the attacks, saying they were too difficult to talk about, and he could not say when the abuse started, Sassano wrote in an April 2012 memo filed as evidence with the court Monday.

Asked to sketch the layout of the locker room where his alleged shower assault had occurred, the man made a completely inaccurate drawing, Sassano testified Monday.

"That led me to believe he was never in that locker room," the agent said.

It was the prospect of such inconsistent testimony - and how it might reflect on the rest of the case - that persuaded prosecutors and defenders to leave him off their witness list, Sandusky's appellate lawyer has said.

Shubin's involvement also caused concern among investigators. He insisted on being present, for his client's protection, at every meeting with prosecutors.

But Sassano said Monday that Shubin went so far as to hide the man "at a hunting cabin somewhere so we couldn't find him to interview him."

Under cross-examination from Deputy Attorney General Jennifer Peterson, Shubin declined to say whether he had attempted to keep his client away from prosecutors, citing attorney-client privilege. But he said he often found himself at odds with McGettigan over his client's potential involvement in the case.

"I certainly recall conflict about everything with Mr. McGettigan," he said.

McGettigan and his cocounsel, Frank Fina, are expected to testify Tuesday on the hearing's final day. It is unclear if Cleland intends to rule immediately on Sandusky's request for a new trial or issue his decision later.

Sandusky's previous appeals efforts have failed. He is serving a 30- to 60-year prison sentence in Greene County after his conviction on 45 counts of sexual abuse spanning decades and involving 10 boys.

jroebuck@phillynews.com

215-854-2608 @jeremyrroebuck