In a new filing in his defamation lawsuit against Louis Freeh, former Penn State President Graham Spanier says he expects his criminal conviction on a child endangerment charge will be overturned, leaving the opportunity for a potential judgment against him in the civil case to be set aside.
The filing came in response to Freeh’s motion in July asking specially-presiding judge Robert Eby to enter a judgment in Freeh’s favor and against Spanier, who has alleged that Freeh maliciously published false statements about him in a report on his university-commissioned investigation of the circumstances surrounding the Jerry Sandusky scandal.
Spanier was convicted on March 24 on one misdemeanor count of endangering the welfare of a child, while being acquitted on felony charges of child endangerment and conspiracy. Freeh argued last month that Spanier’s conviction, as well as his admission in earlier filings that he did not follow up on a 2001 report by Mike McQueary about Sandusky in a shower with a boy, show that the statements Freeh made were not false.
In a response dated Aug. 25, Spanier’s attorneys wrote that while Freeh’s assertion that the conviction may stop Spanier from claiming the falsity of the statements, ‘the Pennsylvania Supreme Court has made clear that a civil judgment based on a criminal conviction is subject to being later set aside if the criminal conviction is overturned on appeal.’
Spanier ‘will be appealing his misdemeanor conviction and fully expects that it will be overturned,’ and will reserve the right to set aside any judgment entered against him in the civil case if and when that happens.
Attorneys for Spanier in the criminal case have indicated they will appeal on grounds that the charge of child endangerment was barred by the statute of limitations and that prosecutors provided no evidence that he had a legally-defined duty of care for children abused by Sandusky. He also contended that the trial judge erred in reinstating a conspiracy charge that was dismissed by Pennsylvania Superior Court and gave incomplete instructions to the jury.
Freeh’s statements came in 2012, long before Spanier’s criminal trial, and the ‘actual malice element of defamation focuses on the defamation defendant’s state of mind and subjective knowledge at the time the statements at issue were published,’ Spanier’s attorneys wrote. ‘A criminal trial in 2017 has no bearing on what [Freeh’s] subjective knowledge and intent was at the time the Freeh report and related statements were published in 2012.’
Spanier also denied that he has ever admitted as true Freeh’s statements that he actively concealed Sandusky’s child abuse, knowingly failed to act to stop Sandusky and failed to show concern for Sandusky’s victims.
His attorneys wrote that Spanier didn’t know Sandusky was abusing children and all of his filings ’emphatically deny’ that he ever had such knowledge.
Spanier initiated a lawsuit for defamation and tortious interference against the former FBI director and judge in 2015. In addition to alleging false statements accusing him of concealing and doing nothing about Sandusky’s actions, Spanier claimed Freeh’s action caused a government agency to end its ‘current and prospective business relationship’ with him. But Eby tossed the tortious interference claim last fall saying it was past the statute of limitations and inadequately pled.
Earlier this year, Eby winnowed to 11 the number of potentially defamatory statements related to the handling by Spanier and others of reports about Sandusky. He ordered Spanier to file a trimmed amended complaint, which Spanier filed in March.
