Judge Allows Conspiracy Charge Against Ex-Penn State Administrators to Move Forward

by Geoff Rushton on February 24, 2017 4:46 PM

The specially-presiding judge in the case against three former Penn State administrators ruled on Thursday that prosecutors could pursue a felony conspiracy charge in addition to a felony charge of endangering the welfare of children.

The conspiracy charge against former Penn State president Graham Spanier, athletic director Tim Curley and vice president Gary Schultz had been in limbo since last year when state Superior Court tossed a number of charges against them related to their handling of a 2001 report about Jerry Sandusky. 

Felony perjury, obstruction and conspiracy charges against all three were quashed after attorneys for the former Penn State officials successfully argued that former university counsel Cynthia Baldwin's own grand jury testimony violated their attorney-client privilege, and that she did not explain to them that she was representing the university and not them individually when each testified before the grand jury investigating Sandusky.

The state attorney general's office proceeded with charges of child endangerment, conspiracy and failure to report suspected child abuse. Prosecutors argued that Superior Court had only dismissed the conspiracy charge as it related to perjury and obstruction. They petitioned Dauphin County court to amend the criminal information to specify a charge of conspiracy to commit child endangerment.

The former Penn State officials argued that Superior Court's ruling quashed the conspiracy charge in its entirety. But prosecutors said that the child endangerment charge was unrelated to Baldwin's testimony and a charge of conspiracy to commit the same was appropriate

On Thursday, Boccabella formally granted the request to include conspiracy in the trial, which is scheduled to begin next month.

Earlier this month, Boccabella dismissed the charge of failure to report suspected child abuse, but denied motions to dismiss the child endangerment and conspiracy charges.

Whether the trial meets the March 20 start date is up in the air. All three have filed a request for Boccabella to certify a motion for pre-trial appeal to Superior Court to address several questions of law, which they believe could result in the remaining charges being dismissed or substantially alter the scope of this case and the upcoming trial." He has yet to rule on that.

The former administrators want another court to review Bocabella's decision on their arguments, which include 

- The statute of limitations has passed and prosecutors are using an absence of action to extend it;

- In their positions they did not provide direct care for children and that the child endangerment statute does not apply to them;

- Prosecutors are charging them under changes to the law that occurred years after the 2001 incident;

- The conspiracy charge should be dismissed because Superior Court had already dismissed a single consolidated conspiracy charge.

The defendants don't necessarily need Bocabella's endorsement for Superior Court to hear their appeal. The previous judge in the case, Todd Hoover, denied requests to certify interlocutory appeals in 2015, but a panel of Superior Court judges took them up. That resulted in the felony charges of perjury, obstruction and conspiracy being quashed in January 2016, a decision that was upheld by Superior Court in March 2016.

The charge of child endangerment is being prosecuted as a felony, not as a misdemeanor, because, the state argues, there was a continuing course of conduct. Each charge carries a maximum penalty of seven years in prison and a $15,000 fine.

The charges of endangering the welfare of children and conspiracy to commit the same, both third-degree felonies, stem from their handling of former Penn State football assistant Mike McQueary's 2001 report of seeing Jerry Sandusky, by then retired from his position as Penn State's defensive coordinator, with a boy in a campus locker room shower. McQueary has testified that he told Curley and Schultz that he witnessed sexual abuse, while Curley and Schultz maintain he did not and that he described "horseplay." Spanier also says he was not told the incident was sexual in nature.

When Sandusky was charged with child sexual abuse in November 2011, Curley and Schultz were charged with perjury related to their testimony before the investigating grand jury in the case, as well as child endangerment and failure to report for what prosecutors claimed was their handling of earlier reports about Sandusky and possible abuse. Spanier was charged the following year on similar grounds and at the same time Curley and Schultz had the obstruction and conspiracy charges added.

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