Judge orders Spanier, Curley and Schultz to stand trial
HARRISBURG - Calling it a "tragic day for Penn State," Magisterial District Judge William C. Wenner on Tuesday ordered the university's former president and two other former top administrators to trial for covering up child-sex abuse allegations against Jerry Sandusky.
Graham Spanier, 65, former athletic director Tim Curley, 59, and former senior vice president Gary Schultz, 63, are charged with perjury, endangering the welfare of children, obstruction of justice and three counts of conspiracy. If convicted on all counts, they each face a maximum 39 years in prison.
No trial date has been set.
Wenner, a retired police officer and Dauphin County detective, contemplated his decision for all of 18 seconds after a day-and-a-half of testimony from eight prosecution witnesses. State prosecutors, he ruled, had met a fundamental burden of proof requiring they show that the charged crimes occurred and Spanier, Curley and Schultz likely committed them.
Bruce Beemer, of the state Attorney General's Office, told Wenner the evidence showed Spanier, Curley and Schultz engaged in a "conspiracy of silence" after a report of abuse in February 2001 and then lied to a grand jury to conceal their knowledge of the abuse and their cover-up plot.
Over the next decade, Beemer said, "the record is replete with them continuing to lie."
Attorneys for Spanier, Curley and Schultz did not call witnesses at the preliminary hearing but argued the state's evidence - including emails between the men in the days after the 2001 allegation and testimony intended to show their knowledge of an abuse investigation three years earlier - did not mesh with the technical requirements of the endangering the welfare of a child, obstruction of justice and conspiracy charges.
Elizabeth Ainslie, an attorney for Spanier, argued the evidence against her client "amounts only to innuendo and far-fetched inference."
Schultz's attorney, Tom Farrell, told Wenner his client is no obstructer of justice. The former senior vice president kept handwritten notes on the 1998 investigation and emails on the 2001 allegation in a confidential file in his office, a former secretary said, but never ordered her to destroy documents or lie to investigators.
"He's the guy who preserved his emails, he's the guy who kept his notes, he's the guy who told his secretary to tell the truth," Farrell said. "He's the guy who produced, for me, the Sandusky file without being under subpoena to do so."
Schultz, portrayed by prosecutors as the cog in the alleged cover-up, consulted an attorney two days after the 2001 incident for advice on the "reporting of suspected child abuse," state Attorney General's Office investigator Anthony Sassano testified Tuesday.
Farrell, in an interview after the hearing, would not say whether he would argue Schultz received bad legal advice, but questioned the inference that the consultation was evidence of a cover-up.
"What cover-up?" Farrell balked. "If this is a cover-up, why would you start telling people?"
Beemer countered that he could have met the low preliminary hearing standard for the charges with a single email exchange in which he said Spanier, Curley and Schultz agreed to handle the 2001 allegation internally rather than alerting the police or a child welfare agency.
"It's a rather astounding series of circumstances, starting in 1998 all the way up really, into 2011, 2012," Beemer said in court. "The defense clearly is misconstruing the nature of the evidence. It's really rather remarkable the attempt to gloss over the historical evidence - that email, from 2001, in which a decision is made on how to handle this case. I could have submitted that email to you (alone) and could have made my case."
The evidence, Beemer said, suggested Spanier, Curley and Schultz "wanted this to go a certain way" to "keep out the police or any agency that would do a legitimate investigation" into Sandusky's behavior.
In one of the emails in Beemer's smoking-gun exchange, Curley backed off an agreed upon plan to inform the state Department of Public Welfare of the 2001 allegation, which traveled quickly up the university chain of command after former assistant football coach Mike McQueary said he walked in on what appeared to be Sandusky sexually assaulting a preteen boy in a campus shower.
"After giving it more thought and talking it over with Joe yesterday, I am uncomfortable with what we agreed were the next steps," Curley said, referring to the late Joe Paterno.
Curley's attorney, Caroline Roberto, would not disclose what Paterno, the former longtime head football coach, said to change Curley's mind and would not say whether Curley would testify about their conversation at trial.
Roberto ripped McQueary, a star witness at Sandusky's June 2012 trial and again Monday, in court and at a post-hearing news conference. The attorney questioned the validity of McQueary's claim that Paterno, who fielded McQueary's first report after the 2001 incident, criticized the university's handling of the abuse allegation and subsequent fallout.
"Mr. McQueary seems to be, in my judgment, making it up as he goes along," Roberto said. "I don't think he has ever told anyone before that Paterno said, 'Old Main screwed it up.'"
A jury convicted Sandusky in June 2012 on 45 counts of child sex abuse related to at least 10 victims over the last two decades, including the 1998 and 2001 incidents. A judge sentenced him last October to 30 to 60 years in state prison. He is appealing the conviction.
Curley and Schultz, who were arrested in November 2011, were previously ordered to trial on a perjury charge after a December 2011 preliminary hearing, but state prosecutors refilled a uniformed set of charges when they arrested Spanier last November.
Prosecutors accused Spanier of lying to a grand jury about his knowledge of an earlier campus police investigation into Sandusky's behavior and of keeping emails and other evidence from law enforcement. The university handed over that material, prosecutors said, soon after Spanier left office.
In grand jury testimony read into the preliminary hearing record Tuesday, Spanier said he had no knowledge of the 1998 investigation and was told the 2001 incident amounted to Sandusky "horsing around" with a boy in a campus shower.
Ainslie said Spanier could not remember the 1998 incident because, while he was copied on emails from Schultz and Spanier, never responded to them and, traveling out of the country at the time, may never have read them.
Spanier told the grand jury in April 2011 that he, Curley and Schultz never discussed reporting the 2001 incident to police or the Department of Public Welfare. Part of the response outlined in the emails, which Spanier received, involved informing Sandusky that they were aware of the earlier incident.
"Spanier lied about material facts during the course of his testimony," Beemer argued.
Spanier said he had no indication what he described to the grand jury as "horsing around" could have been sexual in nature. He said he never considered that possibility because, "what was reported to me was not a report of an activity that was sexual in nature. I know better than to jump to conclusions about that."
However, in a Feb. 28, 2001 email approving a plan not to approach Sandusky rather than reporting him to the police, Spanier appeared to understand the sexual nature of the abuse allegation. "The only downside for us is if the message isn't 'heard' and acted upon, and then we become vulnerable for having not reported it," he wrote.
Beemer called Ainslie's position, that Spanier was unaware of the 1998 investigation - involving serious sexual abuse allegations against a well-known and respected assistant football coach - "inconsistent and ridiculous."
"It is an inconceivable position to take, based on the documentary evidence, that they would not know what's going on in 1998," Beemer said. "If Dr. Spanier did not know, then he's negligent."