The Freeh report should not be substituted for the testimony of the three former Penn State officials in a civil lawsuit brought by a Jerry Sandusky abuse victim, a university lawyer is arguing in court papers asking to have the suit put on hold.
The argument was part of the latest legal back-and-forth over Penn State’s and The Second Mile’s request to stay the federal lawsuit filed by the attorneys for the young man known as Victim 6, whom Sandusky took to a workout in May 1998 and showered with him.
The crux of Penn State’s and The Second Mile’s arguments is that the important witnesses — Graham Spanier, Tim Curley and Gary Schultz — will not cooperate because they face criminal prosecutions that arose from the accusation that the men covered up the abuse suffered by Victim 6 in May 1998.
The lawsuit has seen a flurry of activity since the young man’s lawyers sued Penn State, The Second Mile and Sandusky in January.
Penn State and The Second Mile asked the judge to stay the suit, saying the criminal cases against former Penn State administrators would prejudice their defense of the civil suit if it proceeded at the same time as the criminal case proceeded.
The young man’s lawyers challenged the stay, saying he already “suffered a delay of justice of more than a decade,” and asked for a hearing.
In the latest pleading, Penn State’s lawyers said the university could not defend itself if Spanier, Curley and Schultz were unavailable.
“The burden on the (u)niversity results from the practical unavailability of these key witnesses whose actions are at the heart of (p)laintiff’s complaint,” the Penn State lawyer wrote. “The sworn testimony of those individuals is critical, and not replaced by the ‘findings’ in the Freeh (r)eport and (p)laintiff’s repeated reference to it.”
The Second Mile lawyer said Spanier’s, Curley’s and Schultz’s testimony will be “crucial and necessary” to focus on the time frame and details of when Penn State and Second Mile officials were notified of Sandusky’s showering with the boy in 1998.
The lawyers for Penn State and The Second Mile said all the cases brought on by Sandusky victims have been stayed.
The 1998 shower incident was reported to police by the boy’s mother in 1998, but the case was not prosecuted despite a Penn State police investigation.
Sandusky was charged in connection with that incident in the grand jury presentment in November 2011, but at trial, he was acquitted of the most serious count.
Ken Feinberg, the mediator Penn State hired to settle the victims’ claims, has said negotiations continue and could be finalized by the end of March.