Does "Plain Language" of the Laws Point to Collusion Between 11/9/11 BOT, Freeh, and the AG?

The "plain language" of the laws reveal the PSU Three were wrongly charged and it was highly likely that the PSU BOT knew it.

By
Ray Blehar

Last Monday, August 18th,  I wrote that prosecutor Joe McGettigan told Judge Cleland they were not going to try the case of Curley and Schultz -- with the AG's intention to get one or both to flip and testify against Spanier.  That blogpost described the weak evidence against Spanier, specifically the testimony of (duplicitous) Cynthia Baldwin and e-mails of dubious provenance.

PSU Three:  Plain language of the FTR and
 EWOC laws don't support charges against them.

However, one of the biggest weaknesses in the case against results from the "plain language" of the laws, two of which which most assuredly didn't apply to Curley, and Schultz on 11/9/11.  This fact that was very likely known by the both OAG and the PSU BOT.

The Failure To Report (FTR) child abuse charge (23 Pa. C.S. § 6311)  and the Endangering the Welfare of Children charges (18 Pa. C.S. § 4304 A) don't apply because the law requires the abused children to be "under the care" of, or be provided or subject of PSU's " education, training, or control," respectively.

Failure To Report
In the 2001 FTR case, the victim was "unknown," therefore it was impossible for the Commonwealth to claim the "unknown" victim was under the care of, or affiliated with,  the PSU Three or PSU at large.  The "unknown" child was in the care of Jerry Sandusky, who was not a PSU employee at the time of the incident. The relevant portion of the statute follows (my emphasis added):

(a)  General rule.--A person who, in the course of employment, occupation or 

practice of a profession, comes into contact with children shall report or cause a 

report to be made or in accordance with section 6313 (relating to reporting 

procedure) when the person has reasonable cause to suspect, on the basis of

medical, professional or other training and experience, that a child under the 

care, supervision, guidance or training of that person or of an agency, 

institution,organization or other entity with which that person is affiliated is a 

victim of child abuse, including child abuse by an individual who is not a perpetrator....

Endangering the Welfare of Children
The EWOC charges are unsupported because the Victims 1, 3, 5, and 9, who all were allegedly abused after February 2001, were not provided "education, training, or control" by PSU.  The relevant statute follows below.  Please note that the grading of the offense is cited in section (b) which is  from the description of the offense in section (a).

(a) Offense defined.--

(1)  A parent, guardian or other person supervising the welfare of a child under 18 years of age, or a person that employs or supervises such a person, commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.

(2)  A person commits an offense if the person, in an official capacity, prevents or interferes with the making of a report of suspected child abuse under 23 Pa.C.S. Ch. 63 (relating to child protective services).

(3)  As used in this subsection, the term "person supervising the welfare of a child" means a person other than a parent or guardian that provides care, education, training or control of a child.

(b)  Grading.--An offense under this section constitutes a misdemeanor of the first degree. However, where there is a course of conduct of endangering the welfare of a child, the offense constitutes a felony of the third degree. (Dec. 19, 1988, P.L.1275, No.158, eff. 60 days; July 6, 1995, P.L.251, No.31, eff. 60 days; Nov. 29, 2006, P.L.1581, No.179, eff. 60 days)

Spanier moved for dismissal based on May 16, 2013 (Note: filing is no longer on Dauphin County web-site)  based on the fact that the laws did not apply.  His motion was joined by Curley and Schultz.  Point 4 of Curley's motion follows:

The AG's Sleight of Hand

AG Linda Kelly obviously knew these laws didn't apply when they filed charges, and in the case of FTR, pulled some sleight of hand on November 7. 2011 when she permitted prosecuting attorney Frank Fina to retroactively apply language from the 2007 statute in the presentment (in violation of the ex post facto clauses of the PA and U.S. Constitutions) and  to charge Curley and Schultz for violating 18 Pa. C.S. § 6319 instead of  § 6311.

Just days earlier, on November 5, 2001, the 23-page Sandusky grand jury presentment (page 12) cited Curley and Schultz for violating 23 Pa. C.S. § 6311.  

Sandusky Grand Jury Presentment

Obviously, the other weakness in the citation in the grand jury presentment is that describing Curley and Schultz as school or institution employees is erroneous, according the the definitions of both a "school employee" (employed by a public or private school, intermediate unit or area vocational-technical school) and a student (under age 17) according to 23 Pa. C.S. § 6303.  Morever, neither Curley nor Schultz was the "person in charge."

Finally, one day earlier, a 24-page version of the presentment was attached as "Exhibit A" to the Affidavit of Probable Cause (i.e, criminal complaint).  That document cited Curley and Schultz for violating 23 Pa. C.S. § 6319 on page 24.  

What was the purpose of the AG omitting page 24, which contained a listing of charges for Sandusky, Curley, and Schultz, from the publicly released presentment?

Graham Spanier
As for Graham Spanier, the OAG didn't even bother to provide a citation of the statute in the Conspiracy of Silence grand jury presentment (page 39).  Just as in the cases of Curley and Schultz, the OAG charged Spanier for violating § 6319.

Given the falsity of the charges under § 6311, the AG cited § 6319 for the PSU Three because it does not enumerate who is actually required to report. See below:

§ 6319. Penalties for failure to report or to refer.

A person or official required by this chapter to report a case of suspected child abuse or to make a referral to the appropriate authorities who willfully fails to do so commits a misdemeanor of the third degree for the first violation and a misdemeanor of the second degree for a second or subsequent violation. (Nov. 29, 2006, P.L.1581, No.179, eff. 180 days)

The Plain Language of the Law

Graham Spanier's November 6, 2011 statement, for which he was criticized by many for backing Curley and Schultz, was exactly right based on the plain language of the laws you have just read:

"Tim Curley and Gary Schultz operate at the highest levels of honesty, integrity and 

compassion. I am confident the record will show that these charges are groundless

and that they conducted themselves professionally and appropriately."

One of the most confounding parts of this entire scandal is that the Penn State Board of Trustees allegedly didn't bother to read the law before they made their decisions on 11/9/11.  If this is true, it would be yet another lapse of the Board's fiduciary responsibility under Standing Order IX. (1) (f) 4. which requires members to prepare diligently for each meeting. 

Surma : "We don't know anything..."

According to Board Co-Chair John Surma, the decision to terminate Paterno and Spanier was based on the members reading of the Sandusky grand jury presentment and related media reports.  An excerpt from CNN 11/9/11 press conference transcript follows:

"SURMA: The board deliberative process is, as it implies, a process that requires some time. There was information that we sought, although we don't know anything more about the actual details than the grand jury report and whatever you all write." 

Frazier:  Either colossally
failed to diligently prepare
or was in on the "railroad."

The lawyers on the board that night included Stephanie Nolan Deviney and Kenneth Frazier, who as General Counsel for Merck famously defended the pharmaceutical giant in the Vioxx case.  Frazier, in defending the Freeh Report and dismissing the Paterno report said this:

“In my personal opinion, the Paterno report strains to interpret the 1998 and 2001 emails and other documentation in ways that are at odds with the plain language of those documents,” Frazier said. “The Paterno report is therefore, largely non-responsive or irrelevant.”

It strains credulity that Frazier never bothered to check "the plain language" of the law when he read the grand jury presentment.

 And it also strains credulity that the legal firm, Reed Smith, that was retained by the PSU BOT, didn't check the FTR and perjury laws and realize they didn't apply.

Deviney: Also failed to diligently
 prepare for meeting.

One can likey conclude that Surma silenced Reed Smith and that Frazier and others in the know also remained silent about the laws during the Board's 11/9/11 deliberations.

As for Stephanie Deviney, instead of doing legal research. made her decision based on emotions.  According to the New York Times, Deviney remembered going to the bedroom of her 7-year old son to kiss him good night and she "thought of the mothers of all those boys in the presentment."

Collusion among AG, BOT, and Freeh

The PSU BOT and the PA OAG both had to know the FTR charges didn't apply to Curley and Schultz, and that the perjury charges also couldn't stick based on the uncorroborated testimony of Mike McQueary.  The AG's filing of those charges was wrong, as was the BOT's inaction to rebut the charges.  

It appears that both parties are using the Sandusky scandal as a deflection. The OAG has put the onus on PSU officials in order to cover-up the failures of the Pennsylvania Department of Public Welfare and the actions and in-actions of individuals at The Second Mile.  

Similarly, the PSU BOT gladly threw Paterno and the administrators under the bus very likely to deflect attention away from their business relationships with The Second Mile.  The Freeh Report, which Frazier called "comprehensive and thorough," made no mention of those relationships either.

It has been truly amazing to see that neither the AG Linda Kelly, the PSU BOT, and Louis Freeh had not a single bad word to say about Sandusky's victim farm.  Moreover, the Board put a provision in the Sandusky victim settlements that precluded them from suing the charity, according to settlement attorney Josh Rozen:  

"Under the terms of each settlement, the victims have agreed not to sue Penn State or Second Mile [Sandusky's former charity], and cede their right to sue Second Mile to the university, which plans to go to court to try to get the charity's insurer to reimburse the university for some of the claim amount, Rozen said."

Conversely, the PSU BOT has done everything in its power (e.g., the firings, accepting responsibility for the conclusions in the Freeh Report, agreeing to the NCAA Consent Decree and, paying victim settlements) to ensure that Curley and Schultz, then Spanier, would be convicted in the court of public opinion -- before the trials ever take place.

As Joe McGettigan said about the Curley and Schultz trial, "we don't plan to try that case."  

And they don't need to.

The court of public opinion, aided by the actions of the OAG, the Board, and the PSU administration, and Louis Freeh, has already convicted them.