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Prosecutors Object to Ex-Penn State Administrators Request for Pre-Trial Appeal
by Geoff Rushton on February 21, 2017 11:20 AM
Link: http://www.statecollege.com/news/lo...strators-request-for-pretrial-appeal,1471241/
Former Penn State President Graham Spanier. StateCollege.com file photo
Click photo for gallery
Prosecutors last week filed a brief opposing the request by three former Penn State administrators to have Pennsylvania Superior Court hear a pre-trial appeal that they believe could result in the remaining charges against them being dismissed before next month's scheduled trial.
Attorneys for former Penn State President Graham Spanier, former athletic director Tim Curley and former vice president Gary Schultz, had asked for specially-presiding Judge John Boccabella to certify a motion for appeal before their trial on charges of endangering the welfare of children and conspiracy related to their alleged handling of a 2001 report about Jerry Sandusky.
Attorneys for each man wrote that a ruling in their favor on any of their arguments regarding several questions of law could result in the charges being dismissed or "substantially alter the scope of this case and the upcoming trial."
Deputy Attorneys General Laura Ann Ditka and Patrick Schulte wrote in their response that "An immediate appeal will not materially advance the ultimate termination of this matter and will only further delay the proceedings, which have already been delayed by the defendant in excess of five years."
Bocabella quashed charges of failure to report suspected child abuse earlier this month, but denied motions for the child endangerment and conspiracy charges to be dismissed.
The former administrators want another court to review Bocabella's decision on those arguments, which include
- The statute of limitations has passed and prosecutors are using an absence of action to extend it;
- In their positions they did not provide direct care for children and that the child endangerment statute does not apply to them;
- Prosecutors are charging them under changes to the law that occurred years after the 2001 incident;
- The conspiracy charge should be dismissed because Superior Court had already dismissed a single consolidated conspiracy charge.
Prosecutors say Bocabella already correctly ruled on those arguments based on precedent and that the three men do "not articulate a claim on which it may file an interlocutory appeal as of right." They wrote that an interlocutory appeal cannot be a "substitute for matters that can be raised on direct appeal."
The defendants don't necessarily need Bocabella's endorsement for Superior Court to hear their appeal. The previous judge in the case, Todd Hoover, denied requests to certify interlocutory appeals in 2015, but a panel of Superior Court judges took them up. That resulted in felony charges of perjury, obstruction and conspiracy being quashed in January 2016, a decision that was upheld by Superior Court in March 2016.
The charges of endangering the welfare of children and conspiracy to commit the same, both third-degree felonies, stem from their handling of former Penn State football assistant Mike McQueary's 2001 report of seeing Jerry Sandusky, by then retired from his position as Penn State's defensive coordinator, with a boy in a campus locker room shower. McQueary has testified that he told Curley and Schultz that he witnessed sexual abuse, while Curley and Schultz maintain he did not and that he described "horseplay." Spanier also says he was not told the incident was sexual in nature.
When Sandusky was charged with child sexual abuse in November 2011, Curley and Schultz were charged with perjury related to their testimony before the investigating grand jury in the case, as well as child endangerment and failure to report for what prosecutors claimed was their handling of earlier reports about Sandusky and possible abuse. Spanier was charged the following year on similar grounds and at the same time Curley and Schultz had the obstruction and conspiracy charges added.
The felony perjury, obstruction and conspiracy to commit perjury charges against all three were quashed by Pennsylvania Superior Court after attorneys for the former Penn State officials successfully argued that former university counsel Cynthia Baldwin's own grand jury testimony violated their attorney-client privilege, and that she did not explain to them that she was representing the university and not them individually when each testified before the grand jury investigating Sandusky.
Jury selection in the case is currently scheduled for March 20.
Prosecutors Object to Ex-Penn State Administrators Request for Pre-Trial Appeal
by Geoff Rushton on February 21, 2017 11:20 AM
Link: http://www.statecollege.com/news/lo...strators-request-for-pretrial-appeal,1471241/
Former Penn State President Graham Spanier. StateCollege.com file photo
Click photo for gallery
Prosecutors last week filed a brief opposing the request by three former Penn State administrators to have Pennsylvania Superior Court hear a pre-trial appeal that they believe could result in the remaining charges against them being dismissed before next month's scheduled trial.
Attorneys for former Penn State President Graham Spanier, former athletic director Tim Curley and former vice president Gary Schultz, had asked for specially-presiding Judge John Boccabella to certify a motion for appeal before their trial on charges of endangering the welfare of children and conspiracy related to their alleged handling of a 2001 report about Jerry Sandusky.
Attorneys for each man wrote that a ruling in their favor on any of their arguments regarding several questions of law could result in the charges being dismissed or "substantially alter the scope of this case and the upcoming trial."
Deputy Attorneys General Laura Ann Ditka and Patrick Schulte wrote in their response that "An immediate appeal will not materially advance the ultimate termination of this matter and will only further delay the proceedings, which have already been delayed by the defendant in excess of five years."
Bocabella quashed charges of failure to report suspected child abuse earlier this month, but denied motions for the child endangerment and conspiracy charges to be dismissed.
The former administrators want another court to review Bocabella's decision on those arguments, which include
- The statute of limitations has passed and prosecutors are using an absence of action to extend it;
- In their positions they did not provide direct care for children and that the child endangerment statute does not apply to them;
- Prosecutors are charging them under changes to the law that occurred years after the 2001 incident;
- The conspiracy charge should be dismissed because Superior Court had already dismissed a single consolidated conspiracy charge.
Prosecutors say Bocabella already correctly ruled on those arguments based on precedent and that the three men do "not articulate a claim on which it may file an interlocutory appeal as of right." They wrote that an interlocutory appeal cannot be a "substitute for matters that can be raised on direct appeal."
The defendants don't necessarily need Bocabella's endorsement for Superior Court to hear their appeal. The previous judge in the case, Todd Hoover, denied requests to certify interlocutory appeals in 2015, but a panel of Superior Court judges took them up. That resulted in felony charges of perjury, obstruction and conspiracy being quashed in January 2016, a decision that was upheld by Superior Court in March 2016.
The charges of endangering the welfare of children and conspiracy to commit the same, both third-degree felonies, stem from their handling of former Penn State football assistant Mike McQueary's 2001 report of seeing Jerry Sandusky, by then retired from his position as Penn State's defensive coordinator, with a boy in a campus locker room shower. McQueary has testified that he told Curley and Schultz that he witnessed sexual abuse, while Curley and Schultz maintain he did not and that he described "horseplay." Spanier also says he was not told the incident was sexual in nature.
When Sandusky was charged with child sexual abuse in November 2011, Curley and Schultz were charged with perjury related to their testimony before the investigating grand jury in the case, as well as child endangerment and failure to report for what prosecutors claimed was their handling of earlier reports about Sandusky and possible abuse. Spanier was charged the following year on similar grounds and at the same time Curley and Schultz had the obstruction and conspiracy charges added.
The felony perjury, obstruction and conspiracy to commit perjury charges against all three were quashed by Pennsylvania Superior Court after attorneys for the former Penn State officials successfully argued that former university counsel Cynthia Baldwin's own grand jury testimony violated their attorney-client privilege, and that she did not explain to them that she was representing the university and not them individually when each testified before the grand jury investigating Sandusky.
Jury selection in the case is currently scheduled for March 20.