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Will the Curley, Schultz Charges Stand? More Evidence May Be Waiting, Expert Says

on February 15, 2012 5:48 PM

Lawyers for both Tim Curley and Gary Schultz have asked a judge this week to toss out the criminal charges against their clients, arguing there's insufficient evidence to proceed.

But, in most cases like this, the court will allow the case to move ahead to trial, anyway, said Christopher Leibig, a Washington, D.C.-area criminal-defense attorney.

Typically, he said on Wednesday, a judge will permit government prosecutors to illustrate their full case at trial instead of via pre-trial proceedings.

"Who knows what evidence will come out?" said Leibig, who handles cases similar to Curley's and Schultz's. He said "it's possible that (prosecutors) have witnesses that weren't presented to the grand jury and have not been made public.

"There's no obligation that they present all of their witnesses to the grand jury or make all of their witnesses public," said Leibig, who has followed the Curley and Schultz cases.

In fact, he went on, prosecutors at times will "deliberately not put everything they have" into initial probable-cause reports. That can be a strategic move, Leibig said.

Curley, on leave as Penn State's athletic director, and Schultz, a retired senior vice president, are both charged with perjury and failure to report in connection with the Jerry Sandusky sexual-abuse case. All three men have maintained that they are innocent.

In motions this week, lawyers for Curley and Schultz presented several arguments for the dismissal of charges against their clients. Caroline Roberto, representing Curley, argued in part that the death of Joe Paterno has left the prosecution without a required second witness in the perjury matter.

Other relevant facts or witnesses should be been presented already at the preliminary hearing in the cases, Roberto argued. She also moved to quash the failure-to-report charge against Curley, saying state prosecutors are trying to prosecute him for a 2002 crime under a 2007 law.

That's unconstitutional, Roberto has written.

In Schultz's case, defense attorney Tom Farrell said the prosecution has not identified exactly which among Schultz's statements amounts to perjury.

Schultz, like Curley, appeared before an investigative grand jury in 2011. It's there that they perjured themselves, prosecutors have charged.

Farrell also has argued that the perjury charges rest on Schultz's "expressions of opinion and belief" -- not a typical basis for such claims, he has said.

Schultz testified it wasn't clear to him that a crime involving Sandusky had occurred. Mike McQueary, a reported witness, did not convey to Schultz in 2002 that an incident involving Sandusky was serious, Schultz testified.

Still, said Leibig, the DC-based attorney, judges are often inclined to send such matters to trial and see how they play out there. He said defense attorneys can raise the same dismissal motions as more material -- or an absence of it -- comes to light at trial.

"I would predict that even if the motions (to dismiss) are strong, they would probably be denied at this (pre-trial) stage," Leibig said.
 
If Schultz is convicted on the perjury charge, the State Employees' Retirement System could seek the forfeiture of his state pension of $27,558 a month, according to the Pittsburgh Post-Gazette.
 
Schultz and Curley both live in Boalsburg.

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