An attorney representing former Penn State athletic director Tim Curley argued Thursday that prosecutors had lodged an “unorthodox” perjury case against her client regarding a conclusion he made about allegations involving convicted serial child-sex abuser Jerry Sandusky.
At an hour-long pretrial motions hearing in Harrisburg, attorney Caroline Roberto said Curley simply drew an earnest conclusion about statements former graduate assistant Mike McQueary made to Curley regarding the 2001 shower incident between Sandusky and a boy known as Victim 2, and conveyed that to a grand jury.
That conclusion was that nothing sexual happened between Sandusky, the former Penn State assistant football coach who was convicted on dozens of sex-abuse charges in June, and what appeared to be a 10-year-old boy.
“In trying to wrap our minds around exactly what the perjurious statements are, I would ask the court to keep in mind it’s not what the label is,” Roberto said, arguing a petition for habeas corpus.
Rather, it’s the fact surrounding them.
Curley, along with former Penn State vice president of business and finance Gary Schultz, also faces failure to report child abuse charges. After being filed last November, those charges have since appeared to fall outside the statute of limitations following an amended court filing from the state in May of this year.
However, a state prosecutor told the court the state had developed new arguments as to why that count should not be thrown out on the statute, and the presiding judge on Thursday granted the state more time to put those arguments on paper.
Roberto, along with Schultz’s attorney, Thomas J. Farrell of Farrell & Reisinger, have argued that when prosecutors changed the date of McQueary’s account from 2002 to 2001, that took their clients outside the 10-year statute of limitations for failure to report.
After the pretrial conference, Roberto told reporters the state would be arguing failure to report is a “continuing offense,” which Roberto dismissed as lacking legal foundation.
Thursday’s proceedings were the first day of open court involving the scandal since Sandusky, the school’s former defensive coordinator, was convicted of molesting 10 boys over 15 years. Sandusky awaits sentencing for his conviction on 45 counts of sexual abuse.
The focus now shifts to the two administrators, who have maintained their innocence since the state brought charges in November. Those charges were outlined in the same grand jury presentment that led to Sandusky’s arrest.
Farrell presented oral arguments to Dauphin County Court of Common Pleas Judge Todd A. Hoover on a motion to quash the perjury count, a petition for habeas corpus based on the information prosecutors have provided the defense, and a request for a more detailed bill of particulars from the state.
Hoover made no rulings from the bench Thursday.
Echoing Roberto’s argument, Farrell told the court that habeas corpus was an appropriate avenue to address the perjury charges against Schultz.
He challenged the state to find any case, state or federal, in which the perjury charge was based on a conclusion the defendant made, as opposed to a known fact-based lie.
The Attorney General’s Office, represented by Bruce R. Beemer, soon fired back.
Beemer challenged Farrell to find a case where the top administrators at a university learned an ex-employee had sexual contact with a young boy and characterized that contact, borrowing from Schultz’s grand jury testimony, as “not that serious.”
The issue of corroboration also came up more than once during the brief pretrial hearing.
Back at the former administrators’ preliminary hearing in December, the state indicated it would be able to corroborate McQueary’s account. With the passing of Joe Paterno, however, Roberto questioned how the state would be able to do so.
Paterno was expected to testify about what, exactly, McQueary told him back in 2001. The longtime Penn State head football coach was the first person McQueary went to within the football program after witnessing Sandusky molest the boy, though McQueary has said he refrained from using graphic descriptions out of respect for the elderly coach.
Paterno passed away in January.
Calling the state’s position on corroboration a “rather confounding set of arguments,” Roberto asked what prosecutors had to support McQueary’s testimony.
For her, the answer was nothing.
Beemer responded the state chose to corroborate at the preliminary hearing, but that it was not a requirement.
“What was established was Mike McQueary told [the administrators] he saw something sexual and way over the line,” Beemer said.
“The commonwealth is not required to go back in time because there’s been a material change of circumstances,” he added, ostensibly referring to Paterno’s passing.
Roberto, following the hearing, called it “disingenuous” for prosecutors to make corroboration arguments at the preliminary hearing, only to later argue they did not need them.
The defendants also joined on a motion to preserve all notes of witness interviews, which Harrisburg attorney Brian W. Perry argued were important pieces of discovery for the defense to form its case.
Perry, who is working with Roberto on Curley’s case, said that agents from the Attorney General’s Office may have taken 25 pages of handwritten notes during a witness interview and turned them into a three-page report.
Perry argued this was “a case about words,” and those handwritten notes were important for forming a defense.
At a brief press conference following the hearing, Farrell was asked why he filed for habeas corpus rather than making that challenge to the perjury charge at trial.
Farrell told the reporter: If you were to get in legal trouble, a good attorney would look to get you off before trial first, then during trial, and finally on appeal if needed.
Arguing the habeas petition earlier Thursday morning, Farrell put it like this: “The right time to stop something is when it’s clear it’s not going in the right direction.”