Tuesday, August 26

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.

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.


  1. My apologies for the broken text wrapping. Sometimes the blogger software has a mind of its own and it is impossible to control spacing and returns.

  2. What you've laid out here and in recent reports, Ray, is simply outrageous. All the more so because much of it isn't completely new, but rather a more deeply analysed and referenced presentation.

    So what legal recourses are available to the Penn State community, alumni, and others impacted?? I hate to think all your remedies lay in the dubious basket of "federal investigations". Particularly when a key player in all this wrongdoing is a former lead fed investigator himself.

    1. Becky,
      Between the Federal investigation and the Paterno v. NCAA lawsuit, we should see legal remedies for some of the issues. However, the fact that the 11/9/11 holdovers remain in place is problematic -- and the PSU community may have to be the "force" that drives them out.

      Stay tuned.

    2. Has candidate Tom Wolf been asked his position on replacing BoT members? If elected, Wolf could replace all the 5 voting trustees appointed by the Governor and 4 of the Ex Officio trustees.

    3. Wow! I just learned some things about Tom Wolf. As PA governor, he could certainly provide a glimmer of hope for the entire issue of child welfare in the Commonwealth.

  3. In my personal opinion, the Freeh 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. :-)

  4. Is there actually a federal investigation going on? I see no signs of that whatsoever.

    If so, I question their resolve.

    1. Yes. I've referenced the Federal subpoena served to PSU on several occasions. Could be that they are done in State College and are now working closer to home. They were in State College last summer.

      They have been at for a long time. Lead prosecutor Zubrod is very meticulous and SLOW.

  5. Ray,
    Awesome work as usual.

    Concerning the BOT's motivation - "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." I have heard you mention some things that are very questionable and possibly embarrassing , but they don't seem to be enough to cause the sinister level of actions by the BOT. I'm thinking there has to be more - real big ugly stuff to make them do what they did and are still doing. Especially to get the whole group to go along. Is there more?

    1. Thanks for the kind words.

      I have not publicly written about the details of the BOT's relationship with Second Mile and the potential wrong doing, but from the BOT's actions and the nature of the relationships, there is likely things there that would result in criminal charges against some Board members and PSU administrators.

      The Board doesn't need the whole group to go along (or be in on it). For two decades, the BOT has been controlled by a small inner circle who makes all the big decisions at PSU. They decide who gets to do business with PSU -- and that's where the corruption lies.

      As for something uglier, like involvement in a pedophile ring, we'll just have to wait and see. The Postal Inspection Service is looking into that. I doubt that Board members are involved in it - if it exists. But if it does exist, it's likely that some prominent PSU alumni are involved, considering the composition of the TSM Board.

  6. Hi Ray, again, this is excellent! Do you think Kathleen Kane can or will do anything about these false charges? I know you've stated your opinion that she and Judge Hoover are waiting for political cover in the outcome of the federal investigation before they act upon this obvious illegal frame-up job of Spanier, Curley and Schultz. But as they wait, so do the falsely accused. And this is denying the three of their rights to due-process, especially the right to a speedy trial. How is this possible to deny these three innocent men a fair trial, especially for this long? First, to be railroaded publicly, and falsely labeled by a corrupt Attorney General's office, and then forced to wait this long for a trial is just a complete travesty.

    Do you think the federal investigators know that their apparent lack of resolve is contributing to the complete shutdown of the judicial system in Pennsylvania? And one would think this is unprecedented, or nearly so, in the history of law in this country. I know there are many injustices that have occurred and are occurring in this country due to political corruption. But this sort of high-profile case being ignored for so long by Pennsylvania's courts will serve as a textbook denial of rights. It will be studied by future law students all over this country as an example of the wheels of justice grinding to a halt.

    I think the American public deserves an answer as to why this surreal violation of rights is playing out in Pennsylania. We need that answer very soon, and if it's not given, then the state of Pennsylvania and this country really have crossed the line into fascism.

    1. Truthseeker,
      I suspect that Kane will turn the matter over to the Superior Court for review. Kelly and Fina definitely violated the constitutional rights of the PSU Three on several occasions, to include at their grand jury appearances and by falsely charging them.

      As Cleland thought out loud at the Sandusky trial -- the charges vs. Curley and Schultz could have been done to "hamstring the defense." I don't think this is even up for debate at this point -- that's exactly why it was done.

      I don't think the right to a speedy trial argument is that strong, given all of the filings for dismissal and other motions in this case. But one does have to question how Sandusky got through the system so quickly and the PSU Three are endlessly waiting.

      When all is said and done, this case will definitely go down in history as one of the most corrupt of all time. It will make the Duke Lacrosse case look like a picnic.

      PA is the fifth most corrupt state in the Union and the reason is that there is so much corruption in highway, public works, and construction projects. Note that PSU has been on a building spree for three decades.

    2. Here is some light reading on a prosecutorial misconduct case, but not of the same circumstances as the PSU Three is dealing with.


  7. Well, Ray, there are several people who think that the Federal investigation exists in some dark corner of your brain. In any event, the Feds are not going to touch anything that should be done by the PA OAG, which means that nothing will happen.

    Kane's "no stone unturned" investigation is looking more and more like a dog and pony show. Are you naive enough to think that she is actually going to do something? She had a golden opportunity to set the record straight, but she struck out. She knows as well as anyone about the items in this blog, yet she is derelict in meeting her professional duty to correct the record (and professional duty should always trumps politics, ethically and morally) .

    As for Frazier, he should be in an orange jump suit for his part in submitting a fraudulent data package to FDA for Vioxx, resulting in the premature deaths of 88,000 Americans.

    1. Gregory,
      As I mentioned earlier, the Federal subpoena to PSU requesting its records of interactions with The Second Mile is on the public record.

      I don't pay attention to my critics, except for a good laugh. Most of them have no idea what this case is even about.

      The Feds will not address the alleged prosecutorial misconduct in this case -- there are plenty of other Federal offenses that they will be charging in the future.

      As for Kane, she did set the record straight. The investigation of the Sandusky investigation took too long, proper procedures were not followed and, as a result, children were abused while the investigation dragged along. Moulton's investigation was limited to just the timeframe of Sandusky investigation (Fisher's complaint to the November 2011 grand jury presentment). I do agree that for a "no stone unturned" investigation, there should have been more details included (like those I put in Report 3).

      Many to most of the things I have posted on this blog recently would be turned over to the Superior Court for review. Kane isn't going to do that until rulings are made by Judge Hoover.

      After Kane took office, she wrote memos turning the cases of Curley, Schultz, and Spanier over to Bruce Beemer. The reality of the situation is that politics, and politics alone, is keeping this case alive. Kane, Beemer, and even Judge Hoover know that doing the right thing, and dismissing the charges, would result in public outrage given that the media has already convicted the PSU Three.

      This isn't the first media driven prosecution and it won't be the last.

    2. I'm not sure what anyone thought Kane would come up with while Corbett is still in office. Of course the case was delayed until after Corbett got elected, but did anyone really think there would be a paper trail showing that? And who in the OAG or any other investigator would admit they knew the case was intentionally being delayed? It would either make them look bad for not doing anything or they would fear retribution from Corbett, who is still governor and could still be for another four years. The federal investigation will be nothing, they don't want to get involved in internal dealing of state unless there is definitive proof of corruption.

      The "miraculous" McQueary tip was sent the day after Corbett was elected, that would be one of the biggest coincidences of all time if it really was random. And even if people knew of the McQueary incident well before, they can't question someone in an investigation just based on a rumor floating around, the "tip" gave them the legal backing to move forward and talk to McQueary.

      If Corbett loses the election this year, then it's possible (not very) that some people will decide to talk. But given this case involves child abuse, people will probably think it's best if they just keep quiet for fear of the media characterizing them as some how soft on child abuse.

    3. Just for the record, I wouldn't call myself a critic. Where I should have seen signs of an investigation, I haven't. That causes me alarm. I believe you when you say that there is an on-going investigation, I also believe that investigation is just more window dressing.

      Nothing has changed, nor do I expect any changes.

    4. Misder2,
      For the record, I don't consider you among my "critics."

      The Federal investigation was been quite stealthy, unlike the AG's, which was easily recognized by the govt vehicles that were often parked at Hilton Garden. It may surprise you to know that the Feds have had charges pending in this case since November 2011, but were under an agreement with former AG Kelly not to go public until the trials of Curley and Schultz concluded.

      In the Spring of 2013, the Feds happened upon additional information that was missed by the original investigative team. A new team was brought in to investigate.

      Based on the history of the Kids For Cash case, I expect that the investigation will run into 2015.

    5. Rums,
      I did have high hopes for Kane's investigation of the Sandusky investigation when she said she'd "leave no stone unturned." Unfortunately, the scope of the investigation was narrowly focused and was an internal review sans subpoena power. Accordingly, I adjusted my expectations downward.

      The first 30 pages of Report 3 accurately predicted the outcome of the investigation. However, I added two other chapters dealing with AG misconduct in the case. Eventually, I expect that evidence will resurface when Fina (and perhaps Kelly) are brought before the Superior Court.

      As for the Federal investigation, the potential of government corruption in the Sandusky case is there even though Moulton's investigation said there was no direct evidence Second Mile campaign contributions to Corbett didn't affect decisions in the investigation. Key word = Direct evidence. Plenty of circumstantial evidence, which people are convicted with all the time.

      There was much more in play than just donations at The Second Mile if you understand how the "systems" in PA work. I will write more about that soon, but I'll give you a hint to say that a certain PA government agency keeps popping up.

  8. It's really scary that an appointed PA Attorney General can trump up child endangerment and other charges against reputable men that cost them their jobs and reputations yet the actual people who endangered the children were those at CYS, DPW and Second Mile who were paid to protect children.

    1. Tim,
      Yes it is...that's why PSU Officials are being scapegoated.

      If the public actually found out what was going on in the Sandusky case, they would be outraged and fearing for the safety of their children. They would be demanding the system be fixed.

      And the ambulance chasing lawyers would be going after PA to establish a victim's fund.

      Corbett, et al, don't want any of that.

  9. This comment has been removed by the author.

  10. There is much secrecy regarding the Freeh car crash. News reports that he is being protected in the hospital by armed guards

    1. HK, I'll give you my two cents on that Freeh mystery crash. It's a ruse to get out of being called to testify under oath in Graham Spanier's lawsuit against him. Why do you think there just happened to be an off-duty FBI agent "passing by" the wreck as the first person arriving at the crash? He was there to control and manipulate the situation with medics and reporters. The crash was staged. You don't knock down a couple mailboxes and a bush and graze a tree and sustain massive critical injuries. The mysterious FBI man made sure the medics cut the top off the car to give the wreck the appearance that it was devastating. I'm sure he said something to the effect, "Mr. Freeh's legs are pinned, I want him extricated". Easy to fake, just moan and howl and lay on the floor of the car under the steering wheel.

      As for the helicopter, I'll bet it wasn't even a hospital helicopter. It was probably a prearranged privately owned helicopter that carried Freeh away to an unknown location. Because if he actually went to the hospital, it would be seen that he sustained no critical injuries. Why do you think the hospital can't confirm he was there or not? If it was an actual medical helicopter, then the pilot was instructed to take Freeh to an undisclosed location. The mystery FBI man at the scene made sure the hospital and medics were briefed that Mr. Freeh's safety depends on some deception as to where he will be treated. Yes, because he helped "stop terrorists", so his life is in danger. Yeah sure, Louis Freeh is just so important, the most important man in the world. Just too important to answer petty question as to why he is allowed to frame innocent American citizens for big cash payouts.

      You watch, Freeh will get out of all court orders for him to appear because of a fabricated inability to remember due to "head injuries".

    2. T- the incident aftermath is bizzare. FYI, check and "crooksandliars .com" website- interesting column and comments. on Freeh crash. The apparent FBI comment of the armed guards being needed because Freeh fought terrorism is absurd, unless you want to throw out there that the accident may have involved terrorism. Just bizzare.

    3. HK, you are right to use the word bizarre. The whole Freeh crash is an obvious attempt to, again, mislead the public. And the idea of Freeh being so "important and shrouded in righteous mystery" is part of the image he and his corporate thugs are trying to have us believe. Oh sure, he's being chased by the bad guys, "terrorists". There is even one ridiculous website that claims terrorists used a "dazzler" device to make him crash, what a joke! No, actually, he is simply a man with no conscience, a sociopath that will stop at nothing to make another million dollars. There are even some that say Freeh is responsible for the biggest atrocity in American history, 9-11. If it involved some kind of huge monetary gain for him, then yes, I could see how he may have conspired to allow 9-11 to happen. So yeah, he is not about fighting terrorism, he himself is the terrorist. Freeh's actions are what untreated mental illness looks like in a wealthy and powerful person. He has inflicted enormous damage on this country. Yet his billion dollar backing of corrupt corporate thugs promote him in various forms of bought-off media as the "honorable Louis Freeh". Fortune magazine is one that comes to mind as the one that is totally bought-off as a Louis Freeh propaganda machine. The Freeh agenda, in short, is to place blame on innocent, ordinary American citizens to hide the crime within corrupt government and corporate entities.

      Louis Freeh is a danger to every one of us and our supposed liberties.