Attorneys for the two Penn State administrators charged with perjury told a judge this morning that allegations are based on opinions their clients formed about information they were told.
Tim Curley's and Gary Schultz's attorneys argued that the perjury cases should be dismissed because the allegations are not based on facts.
"In our mind, it's description of the conduct that Mr. Curley recited at the grand jury rather than the label on the conduct that Mr. Curley gave," said Pittsburgh attorney Caroline Roberto, who is representing Curley. Roberto and Schultz's attorney, Tom Farrell, gave their oral arguments during a hearing this morning in the Dauphin County Courthouse. It lasted a little more than an hour, and Curley and Schultz did not attend.
Dauphin County President Judge Todd Hoover did not make a ruling on the request to drop charges.
Roberto said Curley was told by then-grad assistant Mike McQueary about a shower incident in February 2001. Roberto said her client told the grand jury he concluded the incident was inappropriate, and not sexual, and that conclusion can't be prosecuted as a false statement.
Prosecutor Bruce Beemer said the attorneys' arguments were better suited for their closing arguments at trial and not for the hearing. He did not rebut the defense's argument about opinions.
But Beemer told the judge that there are three instances in Curley's grand jury testimony where he denies knowing anything about a 1998 Penn State police investigation into Sandusky showering with an 11-year-old boy.
Beemer also said there are instances in which Schultz said the 2001 incident was referred to child protective services officials.
The hearing was the first court date for the two Boalsburg men since their preliminary hearing in December, and this one focused on several pretrial motions, some filed months ago.
There were no arguments about a motion to quash the failure to report abuse charge, which is a summary offense. That will be addressed at a future hearing because the prosecution filed Wednesday what Roberto called an argument at the "11th hour" about the statute of limitations.
According to the prosecution's filing, they argue the failure to report should not be dropped because law provides for it to be considered a continuing offense. Roberto contested after the hearing this morning that the law does not allow that.
The defense attorneys told the judge that they want the prosecution to turn over all of their investigation notes to see the evolution of the investigation. They said that could be important in seeing what witnesses, like McQueary, told police over the course of their multiple interviews.
The attorneys are also seeking more specific information about the alleged false statements, but Beemer told the judge the prosecution has provided information that's specific enough.
Curley and Schultz are charged with lying to the grand jury investigating Jerry Sandusky, who has since been convicted of child sexual abuse.
Curley is on administrative leave from his job as athletic director, while Schultz resigned as the senior vice president for finance and business in November.
Both men have maintained that they are innocent.
No trial has been scheduled yet.
Mike Dawson can be reached at 231-4616. Follow him on Twitter @MikeDawsonCDT