Published November 20, 2014
Trial may be months away for two Penn State administrators charged with mishandling a 2001 sex abuse complaint regarding Jerry Sandusky and lying to a grand jury about it.
But testimony at Sandusky's recent criminal trial, the former assistant football coach's acquittal on one of the counts and leaked decade-old email traffic could have legal implications for the two administrators, Tim Curley and Gary Schultz.
A fresh court motion also provides a glimpse into the defense strategy for Schultz, the university's now-retired vice president for business and finance, and Curley, who is currently on leave as athletic director.
Meanwhile, pleas from Joe Paterno's family for the release of more information raise the possibility that at trial the now-dead Hall of Fame coach might be blamed for not doing more to stop Sandusky. The beloved coach was fired soon after Sandusky's arrest.
Schultz, 62, and Curley, 58, both of Boalsburg, deny the allegations against them and have asked a judge to dismiss the charges. They both remain free pending trial, and a scheduling conference with Judge Todd Hoover is planned for July 11.
Sandusky was convicted last month of 45 counts for sexually abusing 10 boys. The jury acquitted him of three counts, including on one charge related to the case against Curley and Schultz.
Email traffic from 2001, reported on recently by NBC and CNN, shows Schultz and Curley debating what to do after football team graduate assistant Mike McQueary told them he had seen Sandusky in a team shower with a young boy. In the email traffic, the two administrators indicated they knew there could be negative legal consequences if they did not report it. Those discussions also involved Paterno and the university's then-president, Graham Spanier.
McQueary testified at Sandusky's trial that the retired coach was in a sexual position with the boy and that he believed Sandusky was sexually assaulting the child.
The Sandusky jurors acquitted him on the most serious charge related to that encounter, but they convicted Sandusky of four other counts related to the boy, who has never been identified or located by investigators.
It's difficult to predict how that acquittal will affect the Curley and Schultz case, but it does not necessarily get them off the hook, said University of Pittsburgh law professor David A. Harris.
"Any charge of perjury, the alleged untruth has to be material," Harris said. "The fact that Sandusky was acquitted of that does not mean there is no truth to that allegation. It does not mean it never happened. It only means it was not proved as to him."
Widener University law professor Wes Oliver, who watched the trial in person, said it doesn't matter what the Sandusky jury thought of McQueary's testimony. What matters, he said, is what McQueary said to Curley and Schultz.
On the stand in the Sandusky trial, McQueary did not spend much time recounting his discussions with Curley, Schultz or Paterno, who first fielded McQueary's account and then brought in Curley. Paterno died of lung cancer in January, after denying he had any follow-up discussions with Curley or others.
The new emails show Curley and Schultz intended to report the allegation, but Curley had second thoughts after discussions with Paterno, deciding he would rather first address the matter directly with Sandusky.
The emails indicate Spanier agreed not to go to authorities but said university officials would be "vulnerable" for failing to report it. Spanier called that approach a "humane and reasonable way to proceed."
Asked about those emails this week — whether they are valid or if there is additional context needed to understand them — a spokeswoman for Curley and Schultz declined to comment.
On June 15, Curley and Schultz asked a judge to order the release of a variety of prosecution records, including those that pertain to the unknown boy McQueary saw in the shower.
The request suggests defense lawyers are casting a broad net for material about the university and university officials, a charity for youth Sandusky founded decades ago and the young men who testified they were abused by Sandusky.
That request also specifically asked for information related to an accuser, known as Victim 5, who testified Sandusky fondled him in a Penn State shower in August 2001. They also asked for information about the accuser known as Victim 6, who recounted for jurors a 1998 shower with Sandusky that caused his mother to complain to authorities but did not result in charges at the time.
The defendants also sought prosecution records related to Cynthia Baldwin, a former state Supreme Court justice who accompanied the two men to the grand jury while serving as Penn State's chief counsel.
Also on the discovery wish list was information concerning Wendell Courtney, a former Penn State chief counsel who resigned as lawyer to The Second Mile, the children's charity, upon the former assistant coach's arrest in November.
A grand jury investigation said Courtney was aware of the 1998 investigation. Courtney, who now works for a Harrisburg law firm, did not return a message seeking comment.
State prosecutors said in a recent Curley-Schultz case filing that they had obtained emails among Schultz, Curley and others "that contradict their testimony before the grand jury," and that they recently obtained a file that Schultz kept relating to Sandusky.
Paterno's family has called on the attorney general and former FBI Director Louis Freeh, who is conducting an inquiry on behalf of Penn State, to release all emails and records related to their investigations.
Paterno family lawyer Wick Sollers' issued a statement Monday saying "someone in a position of authority is not interested in a fair or thorough investigation" but is out "to smear former Penn State officials, including Joe Paterno."
He said Paterno "reported the 2001 incident promptly and fully."