Penn State athletic director Tim Curley is asking the Court of Common Pleas to throw out the felony charge he’s facing in the Jerry Sandusky child sex abuse case, in part because of the death of Joe Paterno.
Curley is facing charges of perjury and failure to report child abuse. The state Attorney General’s Office alleges that Curley, on leave from his job, and retired Penn State administrator Gary Schultz perjured themselves when they testified in January 2011 to the grand jury investigating allegations that former Penn State football coach Sandusky sexually molested boys he met over a number of years.
District Judge William C. Wenner held the charges over for trial after a preliminary hearing in December. Now, Curley’s attorney, Caroline Roberto, is arguing there isn’t enough evidence to hold the perjury charge over for trial.
“Without the availability of Mr. Paterno, the prosecution’s prima facie proof as to perjury as charged against Mr. Curley fails as no other facts or witnesses were presented at the preliminary hearing to establish corroboration as required by law,” reads the petition Roberto filed in Dauphin County on Monday.
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Coach Mike McQueary testified at a December 2011 hearing that he had told Paterno, and later Curley and Schultz, that he had seen Sandusky naked in a shower with a boy who appeared to be 10 years old in March 2002. McQueary testified that he didn’t use graphic details to describe what he believed was going on but made it clear he thought it was sexual in nature.
Paterno, who died Jan. 22, had testified to the grand jury, and that testimony was read into the record during the preliminary hearing for Curley and Schultz.
“Mr. Paterno’s grand jury testimony is inadmissible hearsay at trial on the merits in the case against Mr. Curley,” the motion from Curley reads.
The motion argues that to prove perjury, the prosecution needs a witness and other, independent evidence to corroborate the witness’ testimony. Now, with Paterno’s death, the prosecution doesn’t meet the requirement.
The grand jury found that Curley and Schultz had perjured themselves when they testified about what they knew about the alleged incident in the university shower. Curley testified to the grand jury that he wasn’t told of anything sexual in nature taking place in the shower.
Jules Epstein, an associate law professor at Widener University and an expert in criminal law, said Paterno’s death could sink the case against Curley. He said perjury law requires two witnesses as proof, and now that leaves one — Mike McQueary — in the Curley case.
“The motions filed today make a very strong case that the charges against him should be dismissed before trial,” Epstein said.
Roberto is also asking the court to order prosecutors to identify the specific statements by Curley to the grand jury that gave rise to the perjury charges. That information is needed to prepare his defense, Roberto argued.
Another motion by Roberto asked for the dismissal of the failure to report abuse charge. In that motion, Roberto argues that while the alleged violation took place in March 2002, the attorney general uses statutory language about who is required to report suspicions of abuse that took effect in May 2007.
“The version in effect in 2007 had been amended to provide for liability for a much broader group of persons than those liable under the previous version of the statute,” the motion to quash reads.
The state Attorney General’s Office declined to comment.
Anne Danahy can be reached at 231-4648. CDT reporter Mike Dawson contributed to this article.