Wednesday, February 1

FTR Charges Against PSU 3 Dropped, But Sham Case Rolls On

Judge Boccabella’s ruling is part of the Commonwealth’s continued effort to deflect attention away from problems in PA’s child protection system

Ray Blehar

In a two page ruling that was lacking much in the way of rationales, Senior Judge John Boccabella dismissed the Failure To Report (FTR) charges against former Penn State University (PSU) officials Graham Spanier, Timothy Curley, and Gary Schultz while (literally) inexplicably carrying over the charges of Endangering the Welfare of Children (EWOC) and Conspiracy over for court.

This case dragged on for five years under a number of false arguments that PSU officials had failed to report Jerry Sandusky to the authorities after a report of inappropriate behavior in 2001. 


The statute in effect at the time was very clear that PSU officials were not among the enumerated mandatory reporters.  Section 6303 of the statute clearly stated that PSU officials were not “school employees” because of the administrative nature of their jobs and the fact that they did not come in contact with children.  Regardless, the Commonwealth argued that PSU was a school and the head of the school was required to report the incident – but inexplicably charged the Athletic Director and the VP for Finance and Business with not reporting -- while not charging then PSU President Graham Spanier (in 2011).  

Finally, the prosecutors knowingly lied about the date of the incident – moving it ahead one year -- in order to make a very tortured argument that it was covered under the revised 2007 statute. 

Judge Boccabella didn’t buy the tortured argument that attempted to extend the statute of limitations to 2011 and dismissed the FTR charges.

However, Boccabella inexplicably ruled that even though PSU officials could not be tried for FTR, they could be tried for EWOC.   In order to successfully prosecute EWOC, the Commonwealth must prove a three-pronged criteria:

1.     PSU officials were supervising the children or providing supervision of the person providing care of the child and knowingly endangered the welfare of the children.

2.     PSU officials were covered under number 1 (above) and interfered with the report of child abuse.

3.     PSU officials were persons other than a parent or guardian of the child.

Criterion 1 has already been undermined by a ruling from the State Education Retirement System (SERS) that concluded Sandusky was retired from PSU in 1998.

As such, PSU officials had no supervisory over Sandusky in 2001.

Nevertheless, in the SERS case and in the criminal case, the Commonwealth argued that Sandusky’s retirement perquisites (email account, access to campus, an office, complimentary football tickets, etc.) were proof that he was a PSU employee and under administrative control of PSU.   

Utter nonsense.

There are only two things for sure in this world – death and taxes.  It would appear that Sandusky’s tax returns from 2001 and forward would close the door on this ridiculous argument (if logic and the law ever actually becomes part of this case).


But today’s ruling was further evidence that the corrupt system in PA is alive and well.   In order for “bad news” to have the least impact, it is often released on a Friday night of a Holiday weekend so that few will notice.

It was no coincidence that this ruling was released on major college football’s national letter of intent day.    ESPN and the rest of the college football isn’t paying attention to the legal realm today.

The Sandusky scandal never would have become a sports story if not for the unholy alliance between the Pennsylvania Office of Attorney General, the Harrisburg Patriot News, and a small group of PSU trustees. 

Turning the Sandusky scandal into a PSU sports scandal grabbed national headlines and deflected the blame away from those who were truly responsible for identifying the signs of child sexual victimization and taking the necessary steps to prevent Sandusky’s access to children.

Those who have studied the evidence in this case know that the case has been built on a series of lies, various forms of tampering, and evidentiary omissions that continue to persist.  In short, it is an extreme case of prosecutorial misconduct that has been coined “Duke Lacrosse on Steroids.”

It is highly unlikely that new Pennsylvania Attorney General (AG) Josh Shapiro has any inkling about what really transpired in the investigation and court proceedings and only knows what he’s read in the biased news accounts – or has been told by the holdovers from the former Corbett/Ryan/Kelly regime.

Shapiro received praise by the media for his edict to have AG office employees sign a code of conduct.  Unfortunately for Shapiro and the Commonwealth, some of the individuals who signed that oath are corrupt, unethical, and seemingly have no qualms about endangering the welfare of ALL of Pennsylvania’s children.

These prosecutors ignored and twisted the law on many occasions – Shapiro’s new code of conduct isn’t going to stop their misconduct.  

The bottom line here is that if the truth about the Sandusky investigation got out, it would likely be cause of immediate appeals in the Bonusgate and Computergate cases.

In the case of the PSU 3, those plea deal tactics didn’t work and now the Commonwealth’s case is left hanging by a shred – enough to keep the deflection and child endangerment going for the next few years (if this case goes the way of the Monsignor Lynn case).


When Shapiro was sworn in he stated:

"And, I won't be afraid to stand up to anyone--whether it's the President of the United 
States, a multi-national corporation, or someone on the street corner."

Will Shapiro let Pennsylvania’s state of lawlessness and blame-shifting that has been coming from his office -- and their media accomplices -- to continue?

Or will Josh Shapiro have the courage to stop this sham case, quit reading media coverage about the Sandusky case, and look at the evidence of who really failed to protect the children?


  1. Thanks for staying on this, Ray.

  2. Frank Fina's MO was threats and intimidation. Suborning perjury was no problem knowing judges and other prosecutors had your back. Getting drug addicts to tell a story worked for them against Lynn, but didn't do too well against JS (V5). Cynthia Balwin's daughter was in a heap of trouble, but went under the radar when Cynthia flipped. No evidence, no problem! Fabricate some. Prejudice a case in the media with a fraudulent presentation and a hoax or two. That way you don't have to present evidence, you just show the jury pictures of little kids. People really don't want to be confused with the facts, and outside of this blog, nobody has the guts to confront someone like Shapiro with the ugly facts.

    1. Gregory,
      Thanks for your continued readership and the comment.

      I agree with most of what you wrote, though I have no information about any drug abuse by V5 (perhaps you're confusing him with V4?).

      Baldwin's daughter's problem was certainly kept on the down low. Have to wonder how that factored into this mess....she (Baldwin) had likely been advised to obstruct the investigation in its early stages -- before One Term Tom told Ira and the gang that Sandusky had to go down in order to get rid of (and embarrass) Spanier.

      As for Shapiro -- I can only hope that he isn't part of the dark side. Right now, it's too early to tell.

      We'll see.

  3. I think it is clear why Curley and Schultz, but not Spanier, were charged in 2011. The prosecution wanted to remove Curley and Schultz as defense witnesses since they talked to Mike McQueary and would rebut his testimony. Even the Sandusky judge talked about that possibility on the record.

    I suspect the judge doesn't want to get the blame for dropping all the charges so he takes it to trial and lets the jury deal with it. I don't see how a reasonable jury can convict if they use the beyond a reasonable doubt standard, and the defense does not have their hands tied by the judge.

    The case boils down to 'Mike McQueary said' versus 'everyone else said.' It makes no sense why Schultz would lie to the PSU lawyer about what he was told about the shower incident. It makes zero sense why Curley would lie to a Second Mile official. If Curley didn't want Second Mile to know, he wouldn't have talked to them at all.

    Sandusky fooled the police, DA and the child protection professionals at CYS and DPW with a very similar shower incident in 1998 with a known victim. It is not surprising that administrators were fooled in 2001 without a victim coming forward.

    1. Tim,
      Thanks for your comment.

      The theory that Curley and Schultz were charged to keep them from testifying/rebutting McQueary's story was indeed floated by Judge Cleland at the trial. However, there is evidence showing that Fina was trying to flip them against Spanier -- and I think that was the biggest reason. Fina used the same tactics in Computergate and Bonusgate.

      Agree that the Judge sent the case to trial to not completely embarrass the Commonwealth and to put it in the hands of a jury. That said, this is working out just as the Commonwealth planned.

      PSU has already been "convicted in the court of public opinion." If there is an acquittal, the OAG will say they were guilty but got off on a technicality.

      I'm not sure that this case really comes down to Mike McQueary. I think it is more about Sandusky's employment. I will post Judge Cleland's jury instructions on EWOC as a reference. You'll see that it just is very unlikely that a jury could convict on that count.

      If you can't convict on EWOC -- then there is no conspiracy to commit EWOC.

      Finally, in consideration of all the evidence from 1998, the police (Schreffler) definitely wasn't fooled, Gricar wasn't fooled (he was going to press charges if BK was allowed to testify) and the child welfare workers weren't "fooled." Lauro and Miller bent over backwards to find a reason to let Sandusky off the hook.

    2. Ray - What I mean is if Mike McQueary could not testify at trial, how could they convict?

      The whole case hinges on Mike McQueary's testimony that he told Curley and Schultz about seeing Sandusky and a boy in the shower doing whatever.

      Will the defense call Schreffler, Lauro and Miller?

      I have little confidence in the PA justice system after this fiasco and the similar Lynn case.

  4. Ray,
    Thank you for continuing to push for the truth and exposure of the facts in this case. This was a political prosecution and it will probably take a trial to expose the truth. The public is so tainted that whomever ends this case, AG dropping the prosecution or Judge dismissing the case, will be prosecuted by the uninformed public. The only way to clarify this case in the eyes of the public is for the new AG to indict those public servants who participated in this debacle.

    1. Elroy,
      Thanks for your comment.

      I would love to see those who were responsible for this charade be prosecuted and/or sanctioned for their possible misconduct.

      However, the fight for the truth will continue even without help from Shapiro. Help may have to come from Washington DC.

  5. Ray,

    That doesn't make any sense. I always suspected the FTR charges would "go away". However, EWOC and Consp charge seem to be based on the underlying FTR. This due to the fact the EWOC is a "specific intent" crime and would require the PSU three to know "the" child, voluntarily "omit" or fail to act on a known duty to protect the child. In order for this to fly they would have to be aware of a duty to protect the child...which was met previously by the FTR obligation. Since this is is non sequitur. The only one possibly with a duty is Schultz as Director of University Park Police. However, courts have long held police have no duty to act.

    One theory is that the Mcqueary victim (I don't keep track of the #'s) should have been protected by them. However, wasn't Sandusky acquitted of the McQueary victim? If so then this EWOC based on this is likely BS.

    I suspect the defense team will file motions to reconsider based on this theory and try and establish the Courts position on this matter. Alternatively the State will just dismiss.

    Thanks for the update
    Attorney at Law

    1. Ok fired that off premature! I read your blog and the Order. Was there a memo with the Order? That, said as to your point 1. PSU officials were supervising the children or providing supervision of the person providing care of the child and knowingly endangered the welfare of the children. This is a question of fact. Therefore "IF" (and its a big one), the State can prove those facts a charge would lie. However, we all know the State can't prove those charges. The Judge has squarely dropped it back in the lap of the State. The State and Judge knows the case is doomed...The State will reach out to the PSU three to extend a deal dropping the remaining charges for an agreement not to sue for malicious prosecution. However, the PSU three's defense attorneys are too good for this... they will see straight through it.

      Big win. I had no idea the timeline would take so long but this is playing out exactly as I had scripted. Once the EWOC charges disappear then Freeh and the NCAA are completely screwed. That's because all of the criticism has been the failure of due process within NCAA guidelines and contracts, failure to interview witnesses and interfering in a criminal matter as distinguished from an athletic one. Those things taken as a whole when the Court system eventually resolves in favor of the PSU three (applying actual due process) the NCAA will realize it has been hoisted on its own petard.

      My only hope is that the NCAA and Freeh are so thoroughly eviscerated by Paterno and Spanier that institutions everywhere look to this as a way not to mishandle public relations nightmares. The NCAA was so concerned with its own image that it was willing to destroy four individuals without any basis in fact or process of law. How do you measure damages against entities like that? You award a sum equal to the value of their purported a sense you do unto them as they did to others.

      This can never again happen that's the message the Jury will need to send...the NCAA and Freeh should have done it "by the book"! The NCAA should pay Paterno 1 billion for its harm to his estate's commercial disparagement. I honestly think that there is a chance for a multi-billion dollar judgment. I can't imaging what Paterno's name meant but in the the day and age when Jordan, Woods and others are signing nine figure endorsements he was the pinnacle of sportsmanship.

      I suspect all it would take is for Phil Knight to say "absent the scandal he would have written the Paterno's the largest endorsement deal ever" and the NCAA will be paying them forever!

    2. Unknown/Atticus
      Thank you for the insights on the case law.

      In response to your first comment, the McQueary incident is overridden by prong 1 -- the duty of care of the child or supervision of someone in the duty of the care of the child. Regardless of what McQueary reported, the Commonwealth has no idea who the child was so how on earth is it possible to state that Sandusky had a duty of care??? Perhaps Sandusky had picked up a complete stranger??

      While we know that this wasn't his M.O. -- I'd certainly put that forth as a legal argument. I also believe the "unknown" victim angle was the rationale used by the Commonwealth for not charging anyone at The Second Mile. If it works for TSM, why not PSU?

      Next, the judge didn't issue anything but a two page order. My guess is because it would make the Commonwealth look bad -- especially the tortured SOL they tried to get through.

      I hope you are right that the OAG knows this case is DOA and moves to dismiss. I doubt, however, that a settlement would be offered.

      I am unsure if the PSU 3 can sue the state for malicious prosecution without a trial and acquittal???

      So, let's assume that the whole case is thrown out -- or results in acquittals. Then the Paterno case against the NCAA pretty much becomes a slam dunk. Spanier's case against Freeh also gets a big boost.

      NCAA and Freeh will move to settle. The Paterno family and Spanier should refuse anything less than $5 billion each and drag Emmert and Freeh through the courts and expose them for the frauds they are.

      The NCAA is already gun shy to jump on criminal cases and seems to have learned its lesson.

      However Freeh is still out there pulling in big bucks from his phony investigation racket. Spanier's case could put an end to that.

    3. I just don't see the Paterno family taking a standard settlement with no admission of wrongdoing and no apology by the NCAA. If the NCAA is willing to say they were misled by Freeh, then maybe the Paterno's could accept that.

      Freeh was indemnified by Penn State so I assume that Penn State is paying for Freeh's defense. That gives Freeh the ability to fight the case at no cost.

      Even if Penn State wanted to settle, doesn't Freeh have to approve it since it is his reputation on the line? Of course, at age 67, Freeh might be soon ready to retire.

    4. Tim,
      The NCAA knows darned well that the Freeh Report was garbage -- that's why the NCAA never "accepted" it. If you recall, NCAA legal counsel Donald Remy testified that the NCAA didn't have to accept the Freeh Report because Penn State (allegedly) did.

      Also, please recall that Remy contacted the Freeh Group in an attempt to set up a meeting between Emmert and Freeh to discuss the fact that the Freeh Report did not use the words "lack of institutional control" or otherwise make any statements about NCAa violations. As such, the NCAA knew the Freeh Report was WORTHLESS for their purposes of penalizing PSU.

      RODNEY ERICKSON, et al, to the RESCUE.

      PSU accepted the Freeh Report for the limited purposed of being SANCTIONED based on a "lack of institutional integrity." A completely made up term that allowed the NCAA to run their "science project" on a one time basis to smear Paterno and PSU.

      You are correct -- the Paterno's will not settle without an apology. I've heard that they already turned down a big settlement wtih PSU (that included naming the stadium after JVP) because the University refused to apologize.

  6. Ray, you are back on track! Very good post, especially about the timing with signing day. My question is in the event the 3 are found guilty of child endangerment, what will be the likely sentence? I would think it would be a small fine or very short probation. After 5 years, that would seem like a total joke and a waste of time. I think you will be proven correct about this case

    1. DMarioP,
      Thanks for the kind words.

      A few other diligent PSU alums picked up on the LOI day thing before I even looked at the news. I must say that I have a great network out there that gives me a lot of help.

      As for sentencing if found guilty, Lynn got 3-6 years for his conviction on endangerment -- even though his lawyers argued for probation. It was a high profile case and this is the same. If there are convictions, the PSU 3 will likely do time behind bars while the case is appealed.

      Again, if a jury decides this case strictly on the law, it will result in acquittals.

  7. Ray - Have you been following the developments in the Monsignor Lynn case? The credibility of the only victim there appears to be just about nil given many major discrepancies in his testimony.

    The defense also alleges prosecutor misconduct in part because the lead detective told the DA's office he didn't find the victim credible.

    1. Tim,
      Yes, I'm following and find a lot of parallels between these cases.

      According to one of the Big Trial columns written by Ralph Cipriano, the attorney told the detective that he was ruining her case by questioning the credibility of the victim.

      In this case, Eshbach told McQueary not to make a statement regarding the grand jury presentment twisting his words about what he allegedly saw because she was worried about "saving her case."

      The Lynn case was overturned because the law required the Lynn be the supervisor of the priest -- and he wasn't.

      I don't see any way a jury could side with the Commonwealth that PSU officials were Sandusky's supervisor in 2001 or that they had a responsibility/duty of care to that child. In the latter case, the defense can argue that if the Commonwealth has no idea who the child is, then how can they possibly prove PSU had any duty of care?

  8. Great blog, again, Ray. Either it's my getting older memory - & keeping this twisted saga straight - or I totally missed the C. Baldwin's daughter info. Can you direct me to where I can brush up on this?

    1. Dorothy, I don't have any links, but I did review docket sheets back in 2012 regarding Baldwin's daughter. There were also a few articles out in Pittsburgh about her involvement in an accident. If memory serves me right, she was involved in a DUI hit and run, death resulting. Those charges somehow ended up being moved from the Pittsburgh area to Erie County and then they simply vanished. Cindy must have cut a deal to get her daughter off, but the corruption in PA is so thick, it's difficult to stay on the trail.

  9. I guess I'm not surprised this story got very little to no attention in the rags like center daily and Pennlive hmmmm

  10. Great blog, Ray! Do you have any thoughts about the trial for C/S/S being held in Dauphin County? Originally, Dauphin County was determined to be the venue because of the allegation of perjured testimony before the Grand Jury, which was held in Dauphin County. Once the perjury charge was thrown out, shouldn't that have removed Dauphin County's involvement in this case? I can't help wondering how the corruption angle comes into play here. (I'm sure it does, I just can't figure it out.) The fact that the Judge didn't issue an opinion supporting his denial of the request for a change of venue also adds fuel to the fire, since we now have no explanation as to why this case is in Dauphin County. Also, wasn't the EWOC charge the most recent charge added against C/S/S? Was this just a last-ditch effort to try to make anything stick once the corrupt prosecutors knew this case was doomed?

    1. Shari,
      Thanks for the kind words and your comment.

      EWOC was among the charges added when the Conspiracy of Silence presentment was published. I agree that this is a last ditch effort to make anything stick.

      You are correct that the dismissal of the perjury charges should require the case to be tried in Centre County.

      Neither Dauphin County or Centre County is free from corruption because the county judges tend to recuse themselves and another (corrupt) judge is pulled in to rule against the defendants every objection and motion (see the McQueary case).

      However, even with the scales of justice against them, I think the PSU 3 should be able to beat this charge. I will be putting out a new blogpost on this soon.