The former Penn State administrators facing charges for their role in the Jerry Sandusky scandal are asking the court for separate trials.
In motions filed Monday in Dauphin County Court, attorneys for Gary Schultz and Tim Curley argue that their clients’ trials will be prejudiced by being held together. They are scheduled to stand trial together starting Jan. 7.
In addition to felony perjury charges for testimony they gave to the grand jury investigating Sandusky, Curley and Schultz are facing failure to report child abuse charges. Their attorneys are asking the court to separate those charges as well.
Schultz’s motion for separate trials points to testimony the two gave to a grand jury and the possibility that if one defendant’s testimony is used at trial but that defendant doesn’t testify, it violates the other’s right to confront a witness.
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“Mr. Curley implicated Mr. Schultz several times in his grand jury testimony and interview. Should Mr. Curley choose not to testify, as is his constitutional right, Mr. Schultz would be deprived of his Sixth Amendment right to confront Mr. Curley, a witness squarely against him in this instance,” the motion from Schultz’s attorney Tom Farrell reads.
“The harm to Mr. Schultz is unavoidable, especially when only he and Mr. Curley are being tried.”
The motion from Schultz gives examples from when the two men testified to the grand jury. The testimony of one implicates the other, the motion argues. It also argues that simply removing the names of Curley and Schultz from the testimony wouldn’t be enough — that it would be obvious who was being referred to.
One example Schultz’s motion gives of Curley’s testimony incriminating Schultz is what the two men said about the incident when Mike McQueary walked in on Sandusky in a shower with a boy and later told Joe Paterno about it.
“Gary Schultz is the senior vice president. Gary was the other individual that was with me when coach Paterno initially reported it to us,” Curley testified.
While Schultz’s name could be taken out of the testimony that’s read to the grand jury, doing so “will not fool the jury,” Farrell argues.
Curley’s attorney, Caroline Roberto, argues that the accusations against Curley are unique and different from the allegations against Schultz. That motion also argues that, “Substantial evidence presented in this case pertains only to one defendant and would be inadmissible against the other at individual trial pursuant to the Pennsylvania Rules of Evidence.”
For example, Schultz kept notes about the shower incident that Roberto argues are hearsay and inadmissible as evidence against Curley.
The motion filed by Roberto says that the summary failure to report charges should be heard separately from the perjury charges in part because the different evidence could create confusion among the jury. The failure to report would be heard at a non-jury trial, she argues.
Both Curley and Schultz had asked the judge to throw out the failure to report charges, saying the statute of limitations on them has expired.
Anne Danahy can be reached at 231-4648. Follow her on Twitter @AnneDanahy