Tuesday, March 14

Why Plea? And Why Now?

There are several explanations why Curley and Schultz copped pleas on the eve of the trial – and the law isn’t one of them.

By
Ray Blehar

Today’s plea deals by former Penn State University (PSU) officials Timothy Curley and Gary Schultz could be explained by a number of scenarios – however the law isn’t one of them.

THE LAW

As reported here, the Office of Attorney General (OAG) had an almost impossible task of proving the four requirements of the Endangering the Welfare of a Child (EWOC) statute.   

In the triggering 2001 incident,  the OAG cannot prove that PSU officials had a duty of care to the unknown victim or the age of the victim. Next, the evidence is overwhelming that Sandusky was not a PSU employee and was not under the supervision of PSU officials.  Finally, it cannot prove that PSU officials had any reason to believe that Curley’s report of the incident to The Second Mile would not result in protective action by the charity. Those facts nullify the possibility of an EWOC conviction.

If the EWOC conviction fails, so does the conspiracy to commit it.  


So what drove Curley and Schultz to cop pleas and admit that they were pedophile enablers?  And to be useful witnesses, they also have to admit they lied under oath (at the grand jury) when they denied they were told of Sandusky’s sexual activities by Mike McQueary.  The other probable lie that must be told will be that former PSU President, Dr. Graham Spanier approved their plan and/or directed them not to report the incident to the authorities.   

Being pedophile enablers and liars are admissions that reasonable people would be unwilling to make  -- without considerable incentives to do so.

 
What drove Curley & Schultz to say they enabled a pedophile?


So what was the incentive?

The most plausible explanations are:  fear of not getting a fair trial in Pennsylvania and being sentenced to considerable time behind bars; the OAG produced new evidence to force the pleas; coercion/blackmail; and financial incentives.


UNFAIR TRIAL & JAIL TIME

The defendants’ fear of not getting a fair trial in Pennsylvania and facing jail time is very real. 

As reported here, former PSU President Rodney Erickson’s notes revealed that the OAG’s (i.e. Frank Fina’s) strategy was that one or both PSU officials flip on Spanier.  There is nothing illegal or corrupt about that strategy – except when it’s based on trumped up charges and questionable evidence.   And considerable evidence indicates those tactics were used by Fina and other prosecutors in winning their most high profile cases (e.g., Bonusgate, Computergate, and Kane) over the last few years.

Not so ironically, the Kane case seemingly has now become the template for this case.  Defendants Curley and Schultz have put themselves in the roles of Josh Morrow and Adrian King and will testify against the lone, remaining defendant.  

Defendants Curley and Schultz were also aware of the results of the Monsignor William Lynn criminal trial and the Mike McQueary civil trial. 

The cases of Lynn and the PSU officials are very similar in that the prosecutors’ interpretation of the EWOC statute relies on an expansion of the traditional view of supervision and ignoring the ex post facto clause of the Constitution. 

Monsignor Lynn was convicted of EWOC in 2012 and sent to jail – even though he was not a direct supervisor of child molester Priest Edward Avery.  The prosecutors also introduced evidence of abuse outside of the statute of limitations.  In 2013, the verdict was overturned by a panel of three Superior Court judges.  It was then reinstated in 2015.   Even though Lynn is no longer in jail, he is under house arrest while his appeal continues.  

In the McQueary case, the jury improbably found that the PSU statement, drafted before anyone in Old Main knew that McQueary was an essential part of the case, was defamatory towards the former graduate assistant.  Moreover, the jury awarded McQueary compensation from Penn State because he alleged he did not report what he saw to the authorities because he was told the situation was reported to The Second Mile.

Next, there was little to no corroborating evidence that Mike had told anyone explicit details of what he witnessed and it is a fact that he didn’t make a report until 10 years later.   But Judge Gavin, who was brought out of retirement for the trial, ruled he was a whistleblower and awarded $5 million.

In yet another coincidence of many coincidences in this case, Judge Boccabella – a retired judge brought back to preside over the Spanier case – did not disclose the sentencing details involved in the deal.   There is little doubt that a sweetheart deal was made.

In cutting this deal, Curley and Schultz have committed themselves to the same fates as former PSU President Rodney Erickson and Mike McQueary, who now live somewhat cloistered existences for fear of having disappointed the PSU community.

Was admitting to being liars, pedophile enablers, and becoming pariahs of the PSU community worth trading to avoid the risk of going to jail?

Maybe.  Maybe not.

NEW EVIDENCE

On the eve of the Monsignor William Lynn trial, prosecutors told Father Edward Avery that it had five more witnesses that would testify he sexually victimized them.  As a result, Father Avery caved and agreed to testify against Monsignor Lynn.  

Did new evidence or witnesses drive the deals?

There have been no leaks to the media regarding any new smoking gun evidence, which is pretty much the standard operating procedure for the Pennsylvania OAG.    So rule out new evidence. 

Despite PSU (i.e., Ira Lubert) rolling out the red carpet and paying nearly all comers who would make claims against the University, none of those who came forward claimed to have been victimized on the PSU campus after 2001. 

In summary, the so-called “unenforceable ban” on Sandusky bringing children on campus for workouts actually worked.

This scenario doesn’t have legs.


COERCION/BLACKMAIL

Since the beginning of the Sandusky scandal, many followers of the case believe that something worse than Sandusky’s crimes lurks beneath the surface and drove the decisions by the PSU brass to spend hundreds of millions of dollars to keep whatever it is hidden.

Gary Schultz was the Senior Vice President for Finance and Business for PSU and knew about every major construction deal and contract that went down at PSU. PSU had a considerable number of contracts with individual who had ties to Sandusky’s charity.   Some believe or suspect that many of these were “backroom deals” or a result of an uneven playing field in the contracting process.

Were Schultz – and other high ranking members of PSU -- the beneficiaries of these deals?   Were kickbacks involved?  Was money being embezzled?

While these are interesting questions, this scenario should be discounted because of the risk of exposing others involved. 

Tim Curley had a sterling reputation and was considered a “boy scout” by those who were close to him.    Over the course of nearly six years, no rumors have surfaced regarding anything improper regarding Curley.

Based on the evidence, a blackmail scenario seem very unlikely.

FINANCIAL INCENTIVES

The rule of any scandal is to follow the money and it is not a stretch to believe that financial incentives might have been behind  obtaining the pleas from Curley and Schultz. 

It is likely not a coincidence that the pleas were announced on the same day that PSU announced its Athletics Facilities Master Plan.  It’s also likely not a coincidence that the previous schedule to announce the plan in late February was postponed to coincide with the impending plea deals.

According to the press release by the athletic department, the financing of the plan will be dependent on athletic department revenues, corporate sponsorships, philanthropy, and internal debt financing among other things.

In order to improve attendance (revenues), donations, and corporate sponsorships, the University needs to get the Sandusky scandal into the rear view mirror.   As of today, it has paid out hundreds of millions to make the public believe that former PSU administrators Curley, Schultz, and Spanier covered up or otherwise enabled Sandusky’s serial victimization of children.

What’s another five, ten, or twenty million more dollars in an “under the table” outlay to make the scandal go away for good.   

Maybe one of the wealthier sports-minded donors or trustees would provide Tim and Gary with access to some “investment opportunities” that no one would ever have to know about.

As an added bonus, Curley's and Schultz's admissions of endangering the welfare of children could then be interpreted as a validation of the Freeh Report’s key finding.

That outcome certainly would take the wind out of the sails of the pending analysis of the Freeh Report that has been ongoing by the Alumni-elected Trustees (A9)  – led by Board of Trustees (BOT) nemesis, Anthony Lubrano.

By the way, that report has been unnecessarily delayed by the power brokers of Old Main and the Old Guard, who forced a court battle over access to the documents.


The Old Guard of the BOT and those who currently occupy Old Main have used every legal means to keep the Freeh Report from being exposed as the fraud that it is and to keep the truth hidden about the Sandusky scandal.

Perhaps now they have resorted to alternative means.

Any guesses who might have the wealth and the access to those kind of things happen? 

At this point, the Old Guard and Old Main are two thirds of the way to their goal – with former President Graham Spanier being the lone obstacle standing in their way.  

But these individuals also know that if convicted, Spanier will appeal and drag the publicity surrounding the scandal out for years.  As such, they must believe that Spanier will take a plea deal.

This scenario seems reasonable given all of the inexplicable decisions and deals made by Old Main and the Old Guard since November 2011.


CONCLUSION

When Curley and Schultz were charged in 2012, Curley was stricken with cancer and some were unsure that he would be alive at the time of the trial.  As such, the OAG’s focus was on “flipping” Schultz.   In 2014, notpsu.blogspot.com reported that Schultz rejected a plea deal offered in 2012.  

Three PSU officials fought for over five years to clear their names but now two of them have admitted to being pedophile enablers and causing harm to children on the eve of getting the chance to clear their names.

Of the possible scenarios for their pleas,  only two of them make sense.  

Either these men truly feared the corrupt legal system in Pennsylvania or they have become a part of it.

31 comments:

  1. Another factor that might be important is the PA pension forfeiture law. A felony conviction would mean Curley and Schultz would forfeit their 6-figure state pensions. They may have been looking out for their spouses.

    I think you are right that the major motivation for taking the plea was fear of a wrongful conviction on trumped up charges and a long sentence.

    They probably got a sweetheart deal with the prosecution recommending little or no jail time. They may just get probation. Conveniently for the prosecution, the details are under seal until sentencing, which will likely be after the Spanier trial.

    If the judge allows it, Spanier's defense could ask Curley and Schultz about the plea deal, but that could then blow back on Spanier. If the jury hears that Curley and Schultz will get only probation, they could take it out on Spanier. Quite slick by the prosecutors.

    We know very little. It may be that the prosecution was desperate to make a plea deal.

    In a way, this may be an advantage for Spanier at trial. Multiple defendant trials can be confusing to jurors with 3 sets of lawyers questioning each witness and defendants often pointing fingers at each other.

    Spanier has a good defense if the jury is truly impartial. Curley and Schultz did all the work. Spanier never talked to Mike McQueary, Paterno, Courtney, Second Mile, Harmon or Sandusky. He relied on what Curley and Schultz reported to him. Spanier can maintain that admitted-perjurers, Curley and Schultz, lied to him about what McQueary told them.

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    1. Tim,
      Thanks for your comments.

      Correct that Felony EWOC was reduced to misdemeanor EWOC and that keeping retirement would be an incentive.

      Even if the judge doesn't allow the plea deal to be mentioned, it's almost certain that the media will ensure that a Pennsylvania jury will know about this.

      I agree that prosecutors were also desperate to make a deal -- they've been pursuing that since the outset and needed more than the flimsy evidence they had to make a case.

      Finally, I agree that the jury may not find Schultz and Curley to be all that credible, given that their grand jury testimony is fair game .

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    2. Ray,

      Thanks for the thoughts on Curley/Schultz. I've been hoping you'd have something soon as the MSM, as usual, doesn't seem interested in many of the facts.

      Actually, the potential loss of pensions if convicted of a felony brought out by Tim makes a lot of sense for them to plead to misdemeanors.

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    3. Jeff,
      Thanks for reading -- again :-)

      That's one of the things that make sense about pleading to reduce from an F to an M. Others include being able to vote, own guns, and have the full rights as law biding citizens.

      But seriously, I would not have pled to a charge that required me to admit I was a pedophile enabler and a liar.

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    4. Ray,

      I can actually understand why Curley and Schultz would take a plea to avoid loss of their pension and avoid jail or minimize jail time given their age. I've not seen what the possible sentence would be if Spanier is convicted, but it must be substantially more than the 5 year maximum Curley and Schultz now face. Legal experts say Curley and Schultz are likely to avoid jail with their plea deal.

      After over 5 years of being vilified by the news media and the OAG, it seems very unlikely they would have gotten an impartial jury. Their judge has also been ruling against them and has ignored the law by refusing to dismiss the clearly bogus charges.

      The Innocence Project says false confessions account for 25% of wrongful convictions later overturned by DNA evidence. They list the "threat of a harsh sentence" as one reason for a false confession.

      Curley and Schultz also saw how the McQueary lawsuit judge was advocating for McQueary. That judge also ignored the facts, ignored the law and decided in McQueary's favor.

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  2. Were Curley, Schultz and Sandusky good friends? Curley, in particular, seems to have done Sandusky a lot of favors.

    He kept the 1998 Sandusky investigation secret.
    He offered Sandusky an Asst. AD position.
    He gave Sandusky a great retirement deal.
    He helped get Sandusky emeritus status.
    He wrote the letter outlining what was expected of Sandusky in his emeritus position.
    He wrote the email proposing that Sandusky first be notified that they were aware of the 2001 incident.
    He met alone with Sandusky in 2001 so no one else knew what was said and how Sandusky reacted.
    His guilty plea suggests he lied to Second Mile in 2001 about the true nature of the complaint against Sandusky.

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    1. Tim,
      I won't go item by item down the list, but a lot of those things weren't solely decided by Curley. For example, child abuse investigations are conducted confidentially so that seems to be an instruction Tim would have received from Gary.

      I don't think there was an ulterior motive to meeting alone with Sandusky, given that Sandusky was not a PSU employee at the time and it was more like Tim was the "stuckee" in that arrangement.

      The State offered the retirement benefit package, not PSU.

      As AD, Tim probably signed off on many documents that he didn't author.

      I don't think Tim is dishonest in the least, however, I think the Commonwealth is going to have him tell some fibs on the stand -- just like they did with other witnesses in this case.

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    2. Ray - I'm thinking more along the lines of what Spanier's defense might claim. Spanier said he had maybe met Sandusky in passing once or twice but did not know him. Curley certainly at least had a working relationship with Sandusky and possibly they socialized outside of work.

      If I was Spanier's defense lawyer, I'd ask Curley in a deposition if he socialized with Sandusky, if he would have hired Sandusky as head coach in 2000 if Paterno suddenly retired, if he was the one who got Spanier to agree to give Sandusky emeritus status, if he provided a recommendation for Sandusky for the UVA coaching job in 2000 or other positions, etc.

      Harmon or Schultz, or both, broke, confidentiality about the 1998 investigation. Curley would not have had to keep it confidential because he was not a law enforcement official.

      Maybe Curley and Schultz didn't implicate Spanier. If they testify they deceived Spanier, he'd be off the hook.

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    3. Tim,
      Thanks for your comments.

      All good ideas. In addition, there are photographs of Curley socializing with some of the Directors of The Second Mile (at an Easter Seals fundraiser). Spanier's legal team could easily make that connection because Tim testified he originated the idea of taking the issue to The Second Mile.

      I'm quite certain their deal is based on their testimony to implicate Spanier because Spanier was the target of this investigation all along.

      Off topic. I was looking into the pension issue today and based on the current law Tim and Gary wouldn't lose theirs because the EWOC crime is not among those enumerated for pension forfeiture.

      http://sers.pa.gov/members-forfeit-a-pension.aspx

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    4. A 2011 PennLive article said that Curley and Spanier did not have a state pension. They may have TIAA-CREF, which is common for university employees.

      Schultz had a $330K per year state pension.

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  3. Three University administrators that have nothing to do with supervising at-risk children were scapegoated for the Second Mile's negligence. The Second Mile has everything to do with supervising children in their programs. Their pedophile founder's "supervision" of Second Mile children is not a PSU athletics issue. It's not rocket science to understand this is not about PSU football, Paterno or the three scapegoated PSU administrators. Did PSU roll up their tents and flee to another town like the Second Mile did when Sandusky was arrested? No, of course not. That is the behavior of those that are guilty. It's just like the old corrupt carnivals that had all the games rigged in their favor. When the public began to catch on, they rolled up their tents and left town in the middle of the night. PSU didn't hide anything or run away. They were just falsely accused by Louis Freeh so The Second Mile could sneak out of town. While the complicit PA Mafia Media created the distraction with Paterno and football, the dirty Second Mile pedo-carnies shredded all records and left town.

    Josh Shapiro is obviously completely fine with this as he refuses to investigate The Second Mile. He and Governor Wolf even ignore direct requests to do so from concerned members of the public.

    So sad to see Curley and Schultz sell out their integrity with the plea deal. They stood strong with Spanier for six years against false charges. I hope Dr. Spanier will continue to be a model of integrity and never accept less than innocent of all charges. A lot of good people have their eyes on him as he battles the organized crime that is the Pennsylvania government.

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    1. Truthseeker,
      Thanks for your comments.

      Agree 100%.

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    2. Truthseeker,
      During the October 2016 arguments over the motions to dismiss, the judge asked if anyone involved or who was told about 2001 were mandated reporters. None of the defense attorneys mentioned individuals from The Second Mile.

      Maybe they were confused and thought the judge was asking about the defendants -- but regardless, the first name out of my mouth would have been Dr. Jack Raykovitz.

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  4. Obviously, they planted seed pods in the houses of Curley and Shultz, just like they did to the 9 elected trustees. Stay awake, Ray, stay very awake.

    For people who have fought and argued for the past 6 years, this seems like a profound betrayal.

    The false narrative has never been debunked as it should have been by a relentless attack on Fina and Eshbach, et al, to paint them as the liars they are. Ziegler had his teeth in Eshbach, but let go. Being that she is a public figure and is running for elective office, she is more than fair game.

    I note that Tom Costeneau defended Micheal Jackson in his second pedophilia trial by relentlessly attacking Santa Barbara County DA Tom Sneedon and making him and the victim's parents look like they belonged in the looney bin. Nobody has attacked the PA OAG as they should have been attacked. Lies become truth when they are not attacked.

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    1. Gregory,
      Thanks for your comments.

      Wouldn't it be interesting if Spanier's legal team put Eshbach on the stand asked her about the decisions NOT charge Graham in 2011 -- given that the law cited in the GJP said that the "head of the school" was responsible to make the report. Next, ask her again that both Tim and Gary testified they told Graham about 2001 so how was it that she didn't charge him. Also ask her if the statute said head of the school, why did she charge the Athletic Director and the Senior VP for Finance and Business?

      Yes, she should be grilled.

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  5. Sad to see Curley & Schultz flip. I could only imagine the pressure they were under to cop these deals. Is there any chance they might change their minds at testimony and reveal how they're being manipulated? I would imagine there would be dire consequences for this but it would be one last chance for them to redeem themselves.

    Another point: Could there be a more opportune time for them to bring these trials forward? With all of the hoo-ha surrounding Trump's presidency and the AHCA debacle. it would push this somewhat forgotten scandal to the background. I would think that this would be beneficial to a prosecution that expects to lose this case as it would be a mere footnote in the ongoing news cycle. Maybe Curley & Schultz should have considered this before copping their pleas? The thought of them pointing their finger at Spanier, however misbegotten and illegitimate its cause, is just too insufferable to accept.

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    1. We don't know yet exactly what Curley and Schultz told prosecutors to get the plea deal. It is possible they admitted to misleading Spanier. It is also possible they implicated others, such as Courtney, Harmon, Raykovitz or Paterno.

      I expect Spanier's lawyer will be deposing Curley and Schultz this week if Spanier's trial is still on track for next week.

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    2. Tim,
      There is overwhelming evidence that the OAG's strategy was to get Tim and Gary to flip on Graham. If they implicated anyone else, it would likely be Paterno.

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    3. I don't disagree that the OAG wanted to flip Curley and/or Schultz. That is a very common prosecution strategy because a plea is a certain win. Juries are unpredictable.

      The question is what C-S will testify to regarding Spanier. Maybe the prosecution badly wanted a win with the two guilty pleas and accepted them even with C-S admitting they misled Spanier.

      I'm surprised the gave a deal to both when they only needed one. Often the strategy is to pressure them by saying there is one plea deal, and the first one to accept gets it.

      Their pleas really could change radically the entire prosecution and defense strategies. The prosecution doesn't need McQueary if C-S will implicate Spanier. They don't even need everyone from 1998 and the others involved in 2001 because Spanier never communicated with any of them as far as we know.

      Maybe the prosecution will call only C-S. I'm not sure who the defense would call in that situation. Maybe the defense will call McQueary if they have evidence to impeach his testimony, such as photos or witnesses that place him at Second Mile events after the 2001 shower incident.

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  6. The AG set this up just like they do in most cases. They create a scenario regardless of guilt or innocence to force a plea. The AG just wants a win. One the MM trial was done I'm sure the defense attorneys knew the only way out was a plea. I'd be very surprised if they turn in GS.

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  7. Or, perhaps the simplest explanation, they are guilty, know that they would likely face jail and took a deal.

    If the trial was going to vindicate them, they would not have taken the deal.

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    1. They may be guilty but the MM trial proved it will be really hard to prove your case with this jury pool. MM should have lost his case! I think they had no choice.

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    2. jj,

      If Curley and Schultz are plainly guilty of the charges against them, then why have six years past with no trial?

      Announcing false charges against innocent people is not something that is immediately thereafter easily proved in court. In this case, the state would need many, many years to get their lies together and solicit false testimony against these men. Curley and Schultz were probably coerced by the state's thug lawyers by informing them of paid false testimonials gathered against them. They realized it was hopeless and pled guilty to things they didn't do.

      No one that is labeled guilty by the corrupt state of Pennsylvania can ever get a fair trial here---the innocent are guilty, and the guilty are innocent. As proven with Kathleen Kane and the Louis Freeh fraud, if the organized criminal government wants to put a label on you, they use their mobster media to do so. If Curley and Schultz thought they would be "vindicated" in Pennsylvania because they are innocent, then they would have to be the most naive men on this planet. Remember their full-sized mugshots on television behind Linda Kelly? The state used these photos to manipulate the public into putting Curley and Schultz on the same level as Sandusky. So without a trial, the state misled the public to think of Curley and Schultz as somehow being connected to pedophilia. And of course, same thing with Paterno and Spanier---no phony mugshots, but through dishonest headlines, their names linked forever without a trial to pedophilia.

      The justice system in Pennsylvania is organized crime that now destroys the lives of the innocent. This sort of taxpayer-funded government crime against the people cannot continue. Something has to give way because we are not getting the justice and honest government we are paying for.

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  8. I will be long dead and gone before the true story comes out.This whole thing has stunk since the beginning. When people with power want to hide things, they are well hidden. When so many people in power are involved, they can keep the truth hidden for a long long time. If the Federal Gov (aka FBI) could start looking into the entire matter, we might get some honest answers, but that's not gonna happen.

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    1. I think you have too much faith in the FBI. They often have a political agenda and often cover up their mistakes.

      The former FBI Director, Freeh, was paid millions to look at the Sandusky scandal but he had decided ahead of time what his conclusions were going to be. Freeh ignored numerous facts that contradicted his conclusions. Freeh didn't bother to interview any of the most key people, especially Mike McQueary, Dr. Dranov, Paterno, police chief Harmon and the man claiming to be victim 2.

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  9. I disagree with the conclusion that their plea is an admission of enabling a pedophile. Instead, I believe they are admitting that they were fooled by a pedophile. Massive difference!

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    1. We'll see what they say at trial or at their sentencing but I think the motivation was to avoid jail time and avoid a wrongful felony conviction.

      I think you are correct that they were fooled just like everyone else, including the police, DA and two child protection agencies in 1998 and Second Mile in 2001, and probably other times. Even the boy's mother in 1998 was fooled because she continued to let her son see Sandusky after he was cleared in 1998.

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    2. Tim,
      Unfortunately, you're right and wrong.

      I believe you're right to say they admitted guilt to avoid jail time.

      However, legally their admission means they weren't fooled because the crime is defined as KNOWINGLY endangering children -- meaning they weren't fooled by Sandusky.

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    3. Ray - The prosecutor didn't seem to be saying that in his opening argument. He quoted Schultz as saying "We messed up."

      That doesn't sound like "knowingly." Messed up means they made a mistake, which is essentially the same as Spanier's defense that he made a judgement call, which turned out to be bad, in hindsight.

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  10. According to Philly.com, friends of Spanier said he was also offered a deal like the ones taken by Curley and Schultz. That indicates the prosecution wanted to avoid a trial and not just flip 1 or 2 defendants to convict the rest.

    Al Lord quoted Spanier as saying this week “I’d rather go to jail for telling the truth than admit to a lie and say I did something I didn’t do.”

    Friends say Spanier intends to take the witness stand to defend himself.

    http://www.philly.com/philly/news/Spanier-trial-could-shed-light-on-Penn-States-culpability.html

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