Like many of the criminal charges pending in the Curley, Schultz, and Spanier cases, the conclusions drawn by the PA Office of Attorney General (OAG), and believed by the majority of the media and the public, are based on erroneous assumptions.
It is bad enough to draw "reasonable conclusions" based on scant evidence (see the Freeh Report), but drawing conclusions based on faulty assumptions is far worse.
The conclusion that the allegedly deceased, former Centre County District Attorney, Ray Gricar, closed the 1998 case is drawn on an erroneous assumption. That erroneous assumption is:
The presiding DA makes the decision whether or not to file charges after a police investigation concludes.
So, what is erroneous about that statement? I'll get to that later.
First, let's examine the "other" erroneous assumption that looms over the charges against Spanier, Curley, and Schultz.
Erroneous Assumption 1: A report of child abuse will result in an investigation by PA's child welfare agencies.
The failure to report child abuse charges in the Curley, Schultz, and Spanier's cases are based on that assumption. The charges are not based on the absence of the evidence of a report, as the Protective Services laws call for unfounded reports of abuse to expunged from the system. Therefore, the OAG is dependent upon the assumption that all reports of abuse are investigated to press its case.
That assumption is clearly erroneous because the same Protective Services laws provide state and county agencies with the option to not pursue an investigation. While the law was not crafted for that purpose, one could say the law of unintended consequences has made it so.
Pa. 055 § 3490.69 states "that when the CY-48 form in not filed with ChildLine, the report shall be unfounded."
While this law was intended to incentivize caseworkers to complete their cases within the 60 day limit, the unintended consequence is caseworkers can wait out the calendar and let a report of abuse become unfounded without investigation.
This practice comes in handy for the overburdened caseworker, who does not want to investigate the fifth or sixth complaint by a non-custodial parent regarding the custodial parent's alleged abuse of a child. It's a rather political decision as well, as CYS typically sides with the custodial parent -- because a local judge has made the decision that said parent is a better caretaker of the child.
Based on interviews I conducted with parents of abused children, as well as abused children who complained to Centre County CYS, this practice was present on each occasion.
The non-custodial parent was ignored (actually, harassed) by CYS for complaining about the custodial parent, with no investigation resulting. The abused child stated that when he/she complained about his/her sexually abusive (custodial) parent, the CYS caseworker's investigation was little more than a knock on the door and one question to the parent -- who of course denied the abuse.
So, for the OAG to rely on a CYS supervisor's memory of an investigation occurring as a result of an abuse complaint is not reliable -- and particularly not in the case of Centre County CYS.
But that is precisely what the OAG is relying on as evidence of a failure to report the 2001 incident.
OAG Agent Anthony Sassano testified that to acertain that no report of abuse was made in 2001, he did the following three things:
1. He asked Centre County CYS official Carol Smith if she recalled a 2001 investigation of Sandusky.
2. He asked DPW official Jerry Lauro if he recalled a 2001 investigation of Sandusky.
3. He checked the University Park Police Department for a report of investigation, incorrectly stating (at the preliminary hearing) that all child abuse investigations are jointly performed by CYS and police.
As explained above, the failure to recall an investigation is not proof of a failure to report abuse. However, the third point about seeking a report of investigation is quite relevant to the incorrect assumption about Ray Gricar closing the 1998 case.
Incorrect Assumption 2: The presiding DA makes the decision whether or not to file charges after a police investigation concludes.
Ironically, the "Ray Gricar closed the 1998 case scenario" is the exact opposite of the Curley, Schultz, and Spanier failure to report scenario in terms of requiring evidence. In the latter case, the absence of a record of a report is definitive proof to many that these men failed to report the 2001 incident. The proponents of this theory argue that if a report was made, then a record should have been made and retained by one of the men. (Note: The existence of a 2001 report in the Schultz file is a subject of debate involving chain of custody issues.)
However, in the Gricar case, a record documenting his decision not to file charges is NOT required - or rarely considered - by the OAG, the media, or the public as proof that Ray Gricar closed the case. Former DA Michael Madeira stated that no record of the decision existed and nor did he expect there to be.
And for good reason.
In neither case, is anyone required to retain documentary evidence of their action. PSU officials are not required by law to retain a copy of their report -- which could have simply been a phone call. And Ray Gricar was not required to retain a document regarding not filing charges in the 1998 case.
All that said, it is certainly is logical and rational for the public and the media to assume that a district attorney would make the decision whether or not to file charges based on the evidence collected during a police investigation.
As I noted in the previous blogs on this subject, Ray Gricar was notorious for examining the evidence related to the cases that crossed his desk and he would ultimately decide which crimes to charge, which ones not to charge, or charges that could be plead down.
The timeline for the closure of the investigation did not afford Gricar the time to review the evidence pertaining to the 1998 case, thus that is evidence against Gricar making the decision. (Strike 1)
However, those who knew Ray Gricar stated he would never allow someone to tell him how to charge a case and would be very upset if that were to occur. (Strike 2)
The lawyer's nephew Tony Gricar stated: "One thing I can say is that Ray was beholden to no one, was not a politician." He added that Gricar "had a bitter taste in his mouth" for the Penn State program and Sandusky.
I've often wondered why Gricar had this taste in his mouth and I think I know the reason why.
Tom Harmon's sleight of hand in labeling the police report as "Administrative Information" and not as a "criminal investigation" provided Harmon with the authority he needed to close the case.
The local DA isn't required to rule on an administrative inquiry at PSU. (Strike 3, Gricar's out)
All Harmon needed to hear was that DPW had decided there was not enough evidence to "indicate" a finding of child abuse and the case could be closed.
Lauro's decision after interviewing Sandusky at around 11:15AM on June 1st, followed by the 90 minute drive to Harrisburg provides the timeline for the Harmon e-mail at 1:10 informing Schultz that the case was closed and no charges would be filed.
Coming soon: Tom Harmon's possible interference in the 2001 case.