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Ex-Penn State officials' perjury case renews Sandusky case questions

Former Penn State University athletic director Tim Curley, left, and ex-Penn State Vice President Gary Schultz are charged with lying to a grand jury investigating suspected child abuse involving the university's former defensive coordinator Jerry Sandusky.

ANALYSIS

Many probably thought -- and hoped -- that the verdict in Jerry Sandusky's child sex abuse trial would end a very uncomfortable national conversation. The criminal proceedings still pending against former Penn State officials Tim Curley and Gary Schultz will dash that hope.  

Wes OliverWes Oliver is a law professor and director of the Criminal Justice Program at the Duquesne University School of Law.

Curley and Schultz are accused of failing to report their suspicions about Sandusky’s behavior with minors to law enforcement authorities in 2001 and lying to the grand jury that investigated Sandusky in 2011.  Both men have pleaded not guilty to all the charges. At a hearing on Thursday, attorneys for both men and prosecutors will argue several pretrial motions, including one to dismiss the charges.


If the charges are not dismissed or pleaded out and the case goes to trial, they will require a judge or jury to determine how complicitous these men -- and perhaps others -- were in facilitating Sandusky's crimes. 

The perjury count in this case is somewhat unusual. At the time of the preliminary hearing, the Commonwealth of Pennsylvania argued that Curley and Schultz lied to the grand jury when they characterized Mike McQueary's report of a 2001 incident in a Penn State shower room as "horsing around" that did not involve criminal conduct. Their testimony otherwise matched that of McQueary's father, John, who was called to testify as a corroborating witness. McQueary's father testified that McQueary described inappropriate and possibly sexual conduct. 

Until March 30, 2012, the prosecution's case rested entirely on the legal conclusions these men drew from the facts that the younger McQueary related to them. Unless the prosecution could show that Curley and Schultz believed in January 2011 when they testified before the grand jury that Mike McQueary described a crime to them in 2001 -- a very difficult task -- then this count was doomed to fail. 

Read more legal analysis from Wes Oliver

But in March, the prosecution responded to a defense request to explain exactly the falsehoods it was alleging occurred in the grand jury testimony.  In addition to the legal characterizations about the incident that the prosecution claimed amounted to perjury, the Commonwealth added some new claims. Curley, Penn State’s former athletic director, denied knowing anything about the 1998 incident. Schultz, a former vice president at the university, claimed that both the 1998 and 2001 incidents were reported to a child protective agency and that when he learned of the 2001 incident, he did not look into the 1998 allegation. Email traffic has demonstrated these statements to be false.  

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As the prosecution continues to base the perjury count -- at least in part -- on Curley and Schultz's characterization of the events, however, the trial will turn on the information they had about Sandusky in 2001.  Questions long asked will be renewed.  If Mike McQueary saw, and reported, a very serious and criminal incident in a shower, why did he do nothing to stop it?  If McQueary described molestation to the late Joe Paterno, Penn State’s legendary football coach, why did Paterno not immediately call Curley, Schultz or the police?  What did McQueary -- who described anal sex to the grand jury, but two or three slapping sounds and an awkward moment at the preliminary hearing -- actually say to Curley and Schultz? 

In many ways, the issues in a Curley-Schultz trial will be more compelling than the issues in the Sandusky trial.  With the jury's “guilty” verdict in Sandusky's case, we can now identify him as a pedophile without undermining any presumption of innocence.  He was driven by warped motivations. A psychosexual disorder with a focus on adolescents -- a diagnosis the Commonwealth's expert opined may apply to Sandusky -- is by definition a disorder.  

But what about those rational people who allegedly facilitated him?  What signs were they willing to ignore rather than risk Penn State's reputation? The Freeh Report characterized Curley and Schultz -- as well as then-University President Graham Spanier and the beloved Paterno -- as being fully aware of the threat Sandusky posed to young men on the campus.  The defense of Curley and Schultz will necessarily challenge this characterization and will no doubt be a welcomed voice to this national conversation by staunch Paterno supporters still reeling from the NCAA's invalidation of the school's football victories after 1998.     

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