Friday, June 29

Court used "tortured reasoning" to uphold Spanier conviction

The Pennsylvania Superior Court bias was revealed when it accepted the OAG's tortured and illogical reasoning to uphold Spanier's EWOC conviction

Ray Blehar

June 29, 2018, 8:58 AM EDT

In a 2-1 decision, the Pennsylvania Superior Court ruled to uphold the trial jury's verdict that former Penn State University President, Graham B. Spanier, was guilty of Endangering the Welfare of a Child (EWOC).   

The panel differed on the interpretation of the statute of limitations for the EWOC charge, with Senior Judge Lillian Ransom charging Judges Victor Stabile and Carolyn Nichols with using "tortured reasoning" to conclude Spanier's failure to report up until Jerry Sandusky's arrest was a continuing act.

Spanier plans to appeal the decision.

Ignoring Evidence & Bias For The Prosecution

In reading the affirming decision, you have to go all the way to page 3 before you realize that the affirming judges were completely in the tank the Office of Attorney General (OAG) and ignored facts in evidence.

Judge Stabile, who wrote the affirming decision and who served as a Deputy Attorney General under former AG Leroy S. Zimmerman, fell into line with the OAG's yarn that  Spanier was fully aware of the 1998 incident and part of developing the original plan to report Sandusky to DPW.

Stabile's passage reveals he (and Nichols) completely ignored the evidence.

Based on the evidence, all of the passage except the first sentence is untrue.

Discussion of 1998 and Spanier Affirmation

Judge Stabile wrote that Spanier recalled the 1998 incident when informed of it on February 12, 2001.  This information is seemingly based on the Commonwealth's tortured and dishonest assertion that the February 12, 2001 note written by former PSU Vice President for Business and Finance, Gary Schultz, somehow memorialized that Spanier was apprised of 1998.

At the trial, Spanier's attorney, Sam Silver, pointed out that the note of February 12, 2001 (shown below) contained no references to Spanier.

Not even former FBI Director Louis Freeh, who conducted the so-called independent investigation into the Sandusky matter at PSU and made several evidentiary leaps in drawing conclusions, made a leap of that proportion.

OAG prosecutor Laura Ditka did. 

And, unfortunately, Gary Schultz, who was testifying with the understanding his sentencing would be contingent on his level of cooperation with the prosecution, went along with Ditka's story.

Regardless, the affirming Judges ignored the plain language of the note and bought the Commonwealth's version that Spanier was informed about the 1998 incident on February 12th and was directing the response.

Spanier In Charge?

Stabile's contention that Spanier directed Curley to keep him informed on February 12th is not supported by plain language of the note either.

At the Spanier trial, Curley testified that he understood the next step after the hallway meeting with Spanier was to speak with Mike McQueary -- an action that is not reflected on the alleged note that summarized the meeting.  

As defense attorney Silver pointed out at the Spanier trial, the last line of Schultz's note states "TMC will keep me posted."  Clearly, the note shows that Schultz was in charge and that Curley had no specific direction to report back to Spanier.

Bias for the prosecution's version of events is the only explanation for Stabile and Nichols' conclusion that Spanier was directing the actions.

The Original Plan - DPW Report Optional

The original plan of February 12, 2001 stated that Curley would meet with Paterno and advise him that he (Curley) would meet with Sandusky on Friday, February 16th.  If the meeting resulted in Sandusky denying that showering with children was an issue (problem) then Curley would advise that PSU should call DPW.  Curley was to keep Schultz posted about the plan.

Obviously, Stabile erred in stating the 3-point plan included discussing the incident with The Second Mile as there is no such activity mentioned in the note.   Also, the note makes clear (as underlined) that contacting the Department of Public Welfare (DPW) was contingent upon Sandusky's response to the meeting with Curley.

It is rather obvious that Stabile and Nichols didn't bother to look at the February 12, 2001 plan and simply reiterated the OAG's false story that there was originally a 3-point plan to speak with Sandusky, TSM, and DPW.

Sandusky Presentment Redux
Judge Stabile wrote that at the February 25th meeting, Curley and Schultz informed Spanier of the report they received from McQueary, insinuating that Spanier was told of sexual abuse allegations.

This passage is every bit as misleading and fraudulent as the Sandusky grand jury presentment's version of events that connoted McQueary told Paterno he saw Sandusky engaged in anal intercourse with a boy.

The Spanier trial transcripts clearly show that Curley and Schultz testified that they were not told of anything of a sexual nature by McQueary.  Neither man corroborated McQueary's quote that what he told them was "over the line."

There is no evidence whatsoever that Curley told Spanier about his discussion with McQueary and, therefore, certainly none that shows Curley told Spanier on February 25th. 

Schultz's testimony, however, stated that Spanier attended the February 25th meeting and that he thought they "would have reviewed that."  All that said, Schultz remained consistent in that Spanier was only told of horsing around and nothing more serious.

Hindsight Bias Regarding 1998 and 2001

Despite the split decision on the statutes of limitations issue, all three Judges seemingly were stricken with hindsight bias in concluding that Spanier was aware of multiple allegations of sexual abuse.

Judge Stabile wrote (at 24) that Spanier was aware of multiple instances of sexual abuse of minors in 2001.   This reasoning can only be accomplished by misinterpretation of the facts (i.e., hindsight bias). In other words, using the 2012 convictions of Sandusky for crimes in 1998 and 2001 as a basis to conclude that Spanier knew of sexual abuse.

Judge Ransom, in the dissent, wrote (at 8):

First, it is unclear how the judges arrived that Spanier was informed of child abuse at any time during the 1998 or 2001 time frames.   The emails from those years do not make mention of child abuse and not a single person testified to telling Spanier of anything more than horseplay.

Next, it is only through hindsight bias that one can conclude Spanier was aware of sexual abuse in 1998.    The mere fact the 1998 allegations were unfounded and did not result in criminal charges was seemingly ignored by the affirming judges.

Even if you accept the OAG's version of events that Spanier was fully apprised of the 1998 investigation, the logical conclusion drawn is that Spanier, et al, would have considered the 2001 incident to be less serious than the first.

The facts were that University Park police Chief Thomas Harmon informed Schultz in 1998 that Sandusky had admitted to showering with multiple boys, in addition to the TWO that were known about through the investigation.  The police investigation found no criminal wrong-doing.  The DPW investigation found that Sandusky wasn't a danger to children.

Again, using logic, why would Curley, Schultz, and/or Spanier believe the 2001 incident was a criminal sexual act or even child abuse?

Logic is thrown out the window and replaced with hindsight bias.  In other words, the 2012 convictions of Sandusky for crimes in the 1998 and 2001 incidents informed the judges rulings -- not the contemporaneous knowledge of PSU officials.

Unequal Justice

In both decisions, the courts citing and affirming a "common sense of community" and "morality" would be sufficient grounds to recognize and accept an affirmative duty to report and therefore apply the EWOC statute. 

If the Commonwealth believes this reasoning, then why hasn't it brought EWOC charges against Dr. Jack Raykovitz, who not only had an affirmative duty, but a legal responsibility to report Sandusky in 2001 and ensure that the children of TSM were safe.


  1. Great analysis. It's disheartening that judges ignore such obvious facts.

    At least the dissenting judge ruled that prosecutors violated Spanier's "due process rights when it failed to inform him of its intent to rely upon an exception to the statute of limitations at a reasonable time before trial."

    Attorney General Shapiro responded to the rejection of Spanier's appeal by saying "We will continue to pursue anyone who looks the other way in the face of child sexual abuse."

    That's a laugh given the lack of charges against Second Mile officials, especially Jack Raykovitz. Unlike Spanier, in 2001 Raykovitz did supervise Second Mile boys, did supervise Sandusky, knew it was a Second Mile boy in the shower with Sandusky, was a mandated reporter of child abuse and condoned Sandusky showering alone with a Second Mile boy even after receiving PSU's complaint.

    1. Tim,
      Thanks for your comments.

      Regarding the last paragraph, when Raykovitz testified at the Spanier trial, he alleged that he didn't assume that the child was from The Second Mile. Then later testified that Sandusky told him it was a charity participant.

      The prosecution had no issue with Raykovitz's lack of inquisitiveness about the 2001 incident or his remedy of having Sandusky wear swimming trunks when showering with children.

      I wish some news reporter would ask Josh Shapiro, directly, if he believed Raykovitz took appropriate action in 2001 and if he believed Raykovitz's solution endangered children.

  2. Ray - I think the fact that Raykovitz was told it was a Second Mile boy, and still did nothing, is very damning.

    Prosecutors vilified CSS for not getting the identity of the boy, but Raykovitz didn't do that either. Yet, Raykovitz was in a much better position to ID the boy because the boy was a client of Second Mile.

    Common sense tells you that if Curley telling Spanier about McQueary's complaint resulted in Spanier being charged with child endangerment, then Curley telling Raykovitz about McQueary's complaint should have resulted in Raykovitz being charged with child endangerment.

    Raykovitz did less about Sandusky than Spanier.

  3. The current issue of Scientific American gives a great discussion of why these judges acted as they did...laziness in not thoroughly researching the facts, lack of analytical skills, confirmation bias, and fear of the social consequences of reaching a conclusion different from the accepted narrative.