Prosecutors in the case against two former Penn State officials argue that the charges against them should stand and list 33 statements that the state said support the perjury charges.
The documents filed Friday were part of the state’s response to pretrial motions Gary Schultz, now-retired administrator, and Tim Curley, who is on leave as athletic director, filed in February.
The two are facing charges of perjury after allegedly lying when testifying to the grand jury investigating allegations of child sex abuse against Jerry Sandusky. They’re also charged with failure to report abuse. Both asked the Court of Common Pleas in Dauphin County to throw out the charges.
In the documents filed Friday, the state addresses defendants’ rationale for having the cases thrown out, and provides a list of specific statements Curley and Schultz made to the grand jury when they testified in January 2011 that the state says are false.
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Coach Mike McQueary testified that in 2002, when he was a graduate assistant, he walked in on Sandusky naked in a campus shower with a boy who appeared to be 10 years old.
He said he told coach Joe Paterno about it and later spoke with Curley and Schultz. McQueary said he made it clear it was sexual in nature, but Schultz testified he didn’t think it was serious and Curley testified that he didn’t think it was sexual in nature.
The prosecution cites that testimony as examples of perjury.
“My recollection was that Mike could hear there were people in — they were in the shower area, that they were horsing around, that they were playful, and that it just did not feel appropriate,” Curley testified.
Schultz testified there were “no details.”
He said he did have “the impression that it was inappropriate. ... I had the feeling that there was perhaps some kind of wrestling around activity and maybe Jerry might have grabbed the young boy’s genitals or something of that sort is the impression that I had.”
In responding to Curley’s motion to dismiss the case, prosecutors say that Curley “attempts to take advantage of the death of a (c)ommonwealth witness, Joseph V. Paterno.”
In a motion filed in February, Curley argued in part that because Paterno, who died Jan. 22, isn’t available, the prosecution does not have sufficient proof for the charges to stand.
Testimony Paterno gave to the grand jury was read into the record at the December preliminary hearing for Schultz and Curley, when the charges against them were bound over for trial.
Because of that, prosecutors argue, McQueary’s “testimony was corroborated by that of Paterno.”
“Curley waived his right to object to the admission of that testimony for purposes of a pretrial determination of a prima facie case when he stipulated to the testimony of Paterno,” prosecutors argue.
Prosecutors also argued that testimony from McQueary’s father — John McQueary — corroborates the accusations.
John McQueary testified that he met with Schultz who “was aware that the conduct witnessed by Michael McQueary was sexual in nature,” the prosecution wrote.
“The (d)efendants’ denial that there was sexual contact and that they were unaware of criminal conduct, facts alleged to have been communicated by Michael McQueary, is thereby demonstrated to be false,” the state argues.
If the court finds that more evidence is needed, prosecutors wrote, the court should hold a hearing.
When addressing Schultz’s motion to have the charges thrown out, prosecutors wrote, “Schultz argues that his statements should be interpreted as opinions rather than statements of fact.”
Schultz’s motion argued he thought the allegations told to him by McQueary weren’t serious or a crime and that therefore his opinion can’t be deemed false.
“Schultz also argues that his own testimony was too vague and ambiguous to constitute (p)erjury,” the state writes. “Actually, Schultz’s (g)rand (j)ury testimony was that McQueary never informed him that there was sexual contact between Sandusky and the boy.”
“Although at one point appearing to concede that there had been sexual contact, which obviously would be criminal given the apparent age of the boy, Schultz limited his concession by indicating that he meant only horseplay: ‘That’s inappropriate. I don’t know if that’s criminal. If it’s in the context of wrestling or something like that, I don’t know.’ ”
Caroline Roberto and Tom Farrell, attorneys for Curley and Schultz, respectively, issued a statement Friday, saying: “We have received the prosecution’s filings and look forward to reviewing their responses.”
Curley and Schultz have maintained their innocence.
A spokesman for the Attorney General’s Office declined to comment.
Anne Danahy can be reached at 231-4648.