HARRISBURG — Former Penn State president Graham Spanier and administrators Tim Curley and Gary Schultz were ordered to stand trial in Dauphin County after a much-awaited two-day preliminary hearing that saw a rehash of the evidence first revealed in the controversial Freeh report but offered few surprises.
Spanier, Curley and Schultz chatted briefly in the courtroom after District Judge William Wenner bound over all the charges in the case billed by prosecutors as a “conspiracy of silence” of child abuse allegations against Jerry Sandusky more than a decade ago.
Wenner, in announcing his decision on the obstruction of justice, child endangerment, conspiracy and related charges, offered his own brief commentary. “It’s a tragic day for Penn State, to say the least,” he said from the bench.
The lawyers expected the trial no sooner than spring 2014.
The result of the hearing was expected by the defense lawyers, as the prosecution is responsible for presenting just enough evidence to support the charges and link them to the defendants. There’s no guilt or innocence determined at this stage, though the defense lawyers made passionate yet unsuccessful closing arguments to dismiss all the charges on the grounds of a lack of evidence.
Perhaps the strongest pieces of evidence were email exchanges between Curley, Schultz and Spanier regarding the Sandusky shower incidents in May 1998 and February 2001. The prosecution offered testimony from whistle-blower Mike McQueary, a former university police chief and other employees.
The lawyers, though, blasted McQueary for his disclosure Monday that former head football coach Joe Paterno told him “Old Main screwed it up,” and it’s clear he’ll be a target for the defense at trial. Curley’s lawyer, Caroline Roberto, said McQueary’s revelation was convenient given his whistle-blower lawsuit against Penn State and that Paterno is dead and can’t respond to it.
The prosecution read the testimony Spanier gave to the grand jury in April 2011 that was the basis for the perjury charge against the longtime president. In the testimony, Spanier said he didn’t know a thing about the 1998 shower incident, he knew better than to jump to the conclusion that the 2001 incident, which was described to his as horseplay, was something of a sexual nature.
Roberto and Schultz’s lawyer, Tom Farrell, tried to pick apart pieces of the grand jury presentment against their clients. And Roberto said she doesn’t know what alleged conduct of Curley’s is the basis for the obstruction charge.
But prosecutor Bruce Beemer, in his closing remarks, called out the defense lawyers as “misconstruing the nature of the evidence.”
“It’s rather remarkable the attempt to gloss over the historical evidence from 2001,” Beemer said, referring to emails between the three men about handling that Sandusky report from McQueary.
That alone, Beemer told the district judge, would have been enough to support the charges. Beemer discounted Spanier’s contention he had no idea about the 1998 police investigation, saying his former speechwriter testified he was a “micro-manager” and that Spanier’s No. 2, Schultz, would have been “negligent” for not informing his boss of such an issue.
In 2001, Beemer said, Schultz and Curley put together a plan of action before they even talked with McQueary, suggesting “they wanted this to go a certain way.”
“All the way up to 2011, they continue to lie, including under oath. Why? Because they don’t want to be exposed for not reporting this,” Beemer said.
Missing from the preliminary hearing was Cynthia Baldwin, the former university lawyer whose role with Spanier, Schultz and Curley when the three men testified to the grand jury has been under immense scrutiny by the defense lawyers. The lawyers said they expect to litigate the Baldwin issues in the coming months.
Roberto said Baldwin’s absence was not a surprise, as the grand jury presentment did not revolve around her testimony.
A surprise witness was the university’s top spokeswoman, Lisa Powers, who testified that she and her public relations office in Old Main was kept in the dark about Sandusky issues until November 2011 and the release of the presentment, when “all hell broke loose,” she testified.
Powers’ testimony revealed evidence of a structure in place under Spanier in which he wanted and made sure he had control. Even in the last hours of his employment, he was pressing Powers to release a statement with his version of his exit.
But Powers’ testimony befuddled Spanier’s lawyer, Elizabeth Ainslie, who said, “It still mystifies me what relevance this has to these charges.”
Ainslie was shut down by the judge when she started down a path toward one of the most controversial elements regarding that 2001 shower incident: the boy known as Victim 2.
On the cross-examination of investigator Anthony Sassano, Ainslie asked if he knows the identity of the boy, who’d now be a young man in his mid-20s.
Ainslie paused for a few seconds and regrouped. She rephrased her query, asking if there was a decision made about whether to call Victim 2 as a witness in the Sandusky trial, but Beemer jumped in with an objection and the judge forbade her from continuing with that line of questioning.
Ainslie offered perhaps a few hints toward her trial strategy by trying to contextualize the 2001 Sandusky report emails in which Spanier said the plan he and his colleagues decided was “humane.” Ainslie said “humane” is “totally explainable” in terms of how Curley was going to talk directly with Sandusky about the shower incident and not go around him.
The email was a small, but integral, part of the conclusions in the scathing Freeh report, a document that continues to be the source of controversy among Penn State fans and Paterno supporters.
And in some ways, the trial of Spanier, Curley and Schultz could put elements of the Freeh report on trial, as the batch of emails from 1998 and 2001 were introduced as evidence at the preliminary hearing.
In remarks after the hearing Tuesday, Roberto thought she and her defense cohort were able to chip away at some of the allegations put forth by the grand jury.
“I think we were able to show that the presentment was wrong in many ways,” she said.
For instance, the presentment accused Curley of not searching the athletic department for documents and files involving Sandusky. She also pointed to a Penn State technology employee who testified he was given specific instructions for searching for emails in April 2011 to respond to a subpoena. He testified that he expanded his search with the help of an agent from the Attorney General’s Office.
“This whole issue of Mr. Curley and the boxes is wrong or they would have presented evidence of it,” Roberto said. “The whole issue of Penn State not responding to the subpoena is dead wrong.”
The prosecutor and defense lawyers disagreed in their closing arguments about the child endangerment charge each defendant is facing, which offers another glimpse into possible trial strategies.
The presentment concludes that the men, in not reporting Sandusky in 2001, put other children in danger, specifically several of the young men who testified at Sandusky’s trial.
The defense lawyers said the prosecution will have to show their clients had to have direct supervision of a child for the statute to apply. But Beemer, the prosecutor, argued the men were in charge of a large university that saw thousands of children come onto campus each year for events such as summer camps.
The men are facing a summary offense of failure to report abuse, but the future jury will not handle that count. Summaries in cases with misdemeanors or felonies are handled by the trial judge, who in this case will be Dauphin County President Judge Todd Hoover.
All the lawyers have moved to have that count dismissed, arguing the 10-year statute of limitations expired in 2011.