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Spanier Attorneys Push Back on Attorney General's Comments

by on May 01, 2019 5:25 PM

Former Penn State President Graham Spanier's lawyers said they are "dismayed" and "stunned" by comments made by Pennsylvania Attorney General Josh Shapiro Wednesday morning in announcing his office would appeal a federal judge's decision to overturn Spanier's child endangerment conviction.

"We are dismayed that the Pennsylvania Attorney General, the highest law enforcement official in the state, would blatantly and prejudicially misrepresent facts in a public announcement of his intent to appeal the federal court’s ruling that Graham Spanier’s conviction violated the United States Constitution," attorneys Samuel Silver and Bruce Merenstein said in a statement.

On Tuesday, U.S. Magistrate Judge vacated Spanier's March 2017 guilty verdict on the grounds that the conviction for his handling of a 2001 report about Jerry Sandusky with a boy in a locker room shower was based on a statute that did not go into effect until 2007 and so violated Spanier's constitutional rights.

The decision came after the state Superior Court denied Spanier's appeal and the state Supreme Court declined to hear the case. At trial, Spanier was found not guilty on felony counts of child endangerment and conspiracy, charges that implicated an ongoing "course of conduct" and coordinated effort with former administrators Tim Curley and Gary Schultz to commit an alleged crime.

In announcing he would appeal the decision to the U.S. Third Circuit Court, Shapiro said that "As the Pennsylvania Supreme Court has made crystal clear, Spanier’s conduct was illegal," and said the appeal is intended to hold Spanier "accountable for his conduct covering up child sexual abuse."

Silver and Merenstein took strong exception to those remarks.

"Contrary to Attorney General Shapiro’s statement, there is no evidence that Graham Spanier was personally advised that children were being sexually abused," Spanier's attorneys said. "And Attorney General Shapiro knows that the Pennsylvania Supreme Court made nothing 'crystal clear' about Dr. Spanier’s conduct, as it did not hear this case on the merits at any time."

Spanier was informed by Curley and Schultz in 2001 of former Penn State football assistant Mike McQueary's report. All three former administrators have maintained that they did not believe McQueary had described child abuse and that Spanier was never told it involved sexual conduct. They did not take McQueary's report to child welfare or law enforcement authorities and instead decided to talk to Sandusky, bar him from bringing children to campus facilities and report it to Dr. Jack Raykovitz, the head of Sandusky's Second Mile charity for at-risk youth where prosecutors say Sandusky found most of his victims. 

On Wednesday, Silver and Merenstein said Spanier's acquittal on the felony charges was a rejection of the idea he had covered up abuse by Sandusky.

"We are stunned that Mr. Shapiro accuses Dr. Spanier of engaging in a 'cover-up,' when a jury expressly acquitted Dr. Spanier of having engaged in a conspiracy or a continuing course of conduct," they said.

Pennsylvania's child endangerment law changed in 2007 to add liability for those in positions like Spanier's who did not directly supervise a child but employed or supervised someone who did. Mehalchick ruled that "it would have been unforeseeable to Spanier in 2001 that his conduct could result in criminal culpability," and that application of a law put into place six years after the conduct "violates bedrock constitutional principles of due process."

Her decision allowed the Attorney General's Office 90 days to retry Spanier under the 1995 Pennsylvania child endangerment law, which was in place at the time of the 2001 report. 

Before having to decide if they will retry Spanier, however, prosecutors will look to have the conviction reinstated through the federal court appeal.

"We will continue to defend Dr. Spanier against this overzealous and unlawful prosecution," Spanier's attorneys said. "And we will continue to do so in the courts, where the dispute belongs — and not through hyperbolic statements like that of the Attorney General."

Geoff Rushton is managing editor for Contact him at [email protected] or find him on Twitter at @geoffrushton.
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