Wednesday, October 18, 2017

Spanier's Lawyers Say Statute Had Run On Crime He Was Convicted Of

By Ralph Cipriano

Graham Spanier's conviction on a single count of child endangerment doesn't make much sense from a variety of different angles, his lawyers argued in an appeal brief filed yesterday in Commonwealth Court.

First, the crime that the former Penn State president was convicted of was Spanier's response, or alleged lack thereof, to an alleged 2001 rape in the Penn State showers of a ten-year-old boy, a crime supposedly witnessed by wacky whiste blower Mike McQueary.

Let's skip over the fact that McQueary told five different versions of the story about what he supposedly saw and heard in the shower that night, and that he later admitted in writing in an email to the prosecutor that they got the grand jury report wrong, and that he had never actually seen a rape.

The statute of limitations for child endangerment in Pennsylvania is only two years. So by the time the attorney general's office got around to charging Spanier, in 2012, the statute on the 2001 imaginary sex-in-the-showers crime had long expired.

Second, the way the resourceful prosecutors got around the statute of limitations problem at trial was to claim that Spanier had engaged in a continuing course of conduct over the years, namely a cover up that extended until the time they charged him, in 2012. But the jury at Spanier's trial found him not guilty of engaging in a continuing course of conduct to endanger the welfare of a child.

So, the conviction was on flimsy ground.

But third, the resourceful trial judge's post-conviction solution on how to get around the statute of limitations problem was to raise an exception from the Philadelphia archdiocese sex abuse case that allowed for someone accused of endangering the welfare of a child to be charged up until the year that the alleged [in our case the unknown and possibly imaginary] rape victim was 50 years old.

Again, to wrap our heads around this pretzel logic we have to forget that the alleged victim never came forward, and the prosecutor at trial claimed his identity was known "only to God."

The problem with that exception employed post-trial by the trial judge was that it was never raised before, during or after the Spanier trial by the prosecutors. So Spanier's lawyers say the exception shouldn't apply.

Fourth, Spanier's lawyers make the point that the prosecutors charged Spanier in  2011 with violating the child endangerment statute with the 2001 imaginary rape.

The problem here is that the state's 1972 child endangerment law only applied to people who had direct contact with children, such as parents, teachers and guardians. The law was amended after the Philadelphia archdiocese sex abuse scandal in 2007, to include supervisors such as Msgr. William J. Lynn, the archdiocese's former secretary of clergy, who was in charge of supervising abusive priests.

The problem in the Spanier case, his lawyers say, is that the attorney general's office is in effect charging Spanier under the 2007 amended law, which is unconstitutional for an incident that supposedly happened in 2001.

In the case of Msgr. Lynn, his conviction on one count of child endangerment in  2012 was overturned by the state Superior Court because the original law didn't apply to him. But that sensible decision was overturned by the state Supreme Court.

The state Supreme Court's decision in the Lynn case basically got around the fact that Lynn wasn't in direct contact with children by saying that if an administrator knowingly placed a sexually abusive person in proximity to children under his care, then he could be charged with child endangerment.

During the Spanier trial, however, his lawyers argue that the prosecution failed to offer any evidence that Spanier, the president of a university, "owed a duty of care to minor children, or that he was supervising the welfare of those children."

Spanier was sentenced to a jail term of between four and twelve months, a $7,5000 fine, 200 hours of community service, as well as being on the hook for paying the costs of prosecuting him.


  1. The philosophy of the retired judge in the Spanier case seems to be "My mind's made up, don't confuse me with the facts."

    The judge reiterated the "plain language" ruling of the PA Supreme Court about whether a supervisor like Monsignor Lynn was included in the original law. The judge noted that the Lynn grand jury didn't think the law applied, and the prosecutors who spoon fed evidence to the grand jury must also not have thought so. The grand jury told the legislators, who then changed the law.

    If it was such "plain language" then the legislators would have simply told the grand jury and prosecutors that it was their intent that the original law included supervisors like Monsignor Lynn. They did not tell the grand jury that and changed the law instead.

    1. Lynn was not covered under the original 1972 child endangerment law yet prosecutors made a false statement that he was and got the judge to affirm that he was. The State Supreme Court affirmed that he was in order to save prosecutors asses. Soon something will have to be worked over a deal on Lynn before Krasner takes over.

    2. The U.S. Constitution's ban on retroactive laws may be in trouble if another case ever gets to the U.S. Supreme Court. The last U.S. Supreme Court challenge was a child sex abuse case, Stogner v. Calif. in 2003. It involved Calif. retroactively extending the statute of limitations after it had expired. It was merely a 5-4 decision to uphold.

      Voting against were Scalia, Kennedy, Thomas and Rehnquist. Kennedy wrote the dissent. With 5 conservatives now it may be overruled the next time.

  2. Spaniner's lawyers are essentially right on the spot! The judge will have no recourse but to drop the charge and also vacate the conviction of the other two administrators.

  3. James - Even if Spanier has his conviction overturned, I doubt that Curley and Schultz would have their convictions vacated because they took a plea deal. They also pleaded to a different charge than the one for Spanier's conviction.

    Usually when you take a plea, you give up any appeal rights because you are admitting to the crime.

    1. That law should be changed since people plead guilty to crimes they did not commit or non-existent crimes because prosecutors threaten their family members with jail sentences in order to obtain a forced plea, also a defendant does not have much of a chance at a fair trial when the media has publicly condemned them.

      Defendants civil rights are trampled upon when they come in contact with the justice department,no one should have to decide between losing one's liberty and shielding a family member from prison.

      Our government's basic duty is to shield and protect its citizens not use them as shields to get at their intended targets.

  4. It is illegal for "prosecutors [to] threaten their family members with jail sentences in order to obtain a forced plea."

    Police can legally lie to a suspect about all sorts of things in order to prompt them to confess. Prosecutors have much less leeway with a defendant because they have to turn over their evidence to the defendant's lawyer. Police can lie to a suspect about having an eyewitness or the suspect's DNA on the murder weapon but a prosecutor can't legally falsify such evidence.

    I think the prosecutors were unethical with their lies in the grand jury presentment that McQueary witnessed "anal intercourse." That was corrected by McQueary's later testimony but the damage had already been done. If I were a judge, I would have thrown the McQueary-related charges out because of prosecutor misconduct and because the unidentified victim was automatic reasonable doubt.

    In the Curley-Schultz-Spanier case, prosecutors could have played the defendants off against each other by telling them that the first to take a plea would get the deal and testify against the other two.

    You are correct that "a defendant does not have much of a chance at a fair trial when the media has publicly condemned them." I think that's the reason Curley and Schultz took a plea. Even with the plea, they stuck to their story that McQueary never told them it was a sexual assault.

  5. Are you aware of the Justice Department forcing Confidential Informants to sign NDA Agreements that prevent them from providing testimony that may challenge their scenario.

    If Clinton and Obama are tried and convicted, hanging the vermin is too humane.

    There will be clear proof that the Obama Justice Department and FBI obstructed conclusive evidence that bribery and corruption was part of the Uranium One Deal.

    Is there any issue worse than former and current members of the Executive Branch being implicated in treasonous actions and national security issues.

  6. Anonymous - I don't see what an NDA agreement in a federal investigation about Russia and a uranium deal has to do with the Spanier case.

    You are jumping to conclusions without evidence.

  7. Any updates on Seth Williams? Kathleen Kane? Why isn't Katty.. oops.. I mean Kathy in jail yet??

    1. Seth is serving 5 years in fed jail. Katty who? We forgot all about her as she is playing craps by doubling her bets at appellate court. She is working very hard at achieving a zero net worth.


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