Pair may testify against Spanier

Curley, Schultz took guilty pleas for alleged roles in Sandusky child abuse case

Recent guilty pleas to misdemeanor child endangerment by two former Penn State administrators involved in the Jerry Sandusky scandal may signal the pair have struck a deal to testify in the upcoming trial of their former boss, according to local defense attorneys.

Because they have no prior criminal records, former Athletic Director Tim Curley and former Vice President Gary Schultz face minimum sentences of probation to nine months in jail, based on sentencing guidelines, and will probably receive probation after the trial of former Penn State President Graham Spanier, said Robert Donaldson, a Blair County attorney, who said it was “fairly clear” Curley and Schultz had agreed to “cooperate.”

Apparently, the state believes their testimony would help convict Spanier of child endangerment and conspiracy, although the state previously had seemed confident of going to trial in all three cases, Donaldson said.

One indication that the state might need the testimony is the presumed lack of much physical evidence, according to attorney Mark Zearfaus.

Curley and Schultz’s apparent willingness to testify will put further pressure on Spanier to come to his own plea arrangement — even as it leaves him with less leverage to strike a good bargain, according to Donaldson.

Spanier’s trial is set to begin Monday, but many deals are struck “at the 11th hour,” when “the reality of conviction” and the potential for prison “starts to come into intense focus,” Donaldson said.

Both sides almost invariably prefer a plea deal to a trial, if they can get something acceptable, because of the risk of losing — with jail time the bugaboo for defendants, and the high cost in time and money the bugaboo for prosecutors, according to Donaldson, who said 95 percent of cases in the U.S. end in plea bargains.

Spanier, who probably could have taken the same plea offer as Curley and Schultz, likely will face jail time — maybe nine to 18 months — if he loses at trial, because while the court sees a plea deal as acceptance of responsibility, it sees a trial contest as the opposite, Donaldson said.

Curley and Schultz probably accepted their plea deals because the standard range of the applicable sentencing guidelines allow for them to receive probation, said attorney Tom Dickey.

“As a defense lawyer, I want probation to be in that standard range,” Dickey said. “I can say, ‘Look, judge, the law says it’s OK.'”

For a judge to go out of the standard range — either way — he must explain why he did so in the trial record, Dickey said.

In highly publicized cases like these, a deviation — especially a sentence seen as a “slap on the wrist” — could subject the judge to public outcry, according to Dickey.

The presumed arrangement between Curley and Schultz and prosecutors for a lenient sentencing recommendation is almost certainly left informal until after the Spanier trial, according to the local lawyers.

It’s informal so that Curley and Schultz can truthfully say they don’t have a deal when cross-examined at the Spanier trial, said State College attorney Matt McClenahen, who stressed that he was speculating.

A formal deal would allow Spanier’s defense attorney to “impeach” the testimony as quid pro quo, according to McClenahen.

Still, even without a formal deal, Spanier’s lawyer can call such testimony into question, alleging that Curley and Schultz are testifying in expectation of favorable sentencing recommendations from prosecutors, according to McClenahen.

The uncertainty of their situation — minus a locked-in agreement — might actually give them more incentive to ensure their testimony pleases prosecutors, Spanier’s lawyer could argue, McClenahen said, again stressing that he was speculating.

A jury in Spanier’s trial might feel that because Curley and Schultz have admitted to wrongdoing, Spanier too is probably guilty, Zearfaus said.

Because of that, Spanier’s defense team will probably seek to reject jurors who know about those guilty pleas, Zearfaus said.

But because jurors who aren’t rejected need only assure the judge they can make decisions based entirely on evidence presented at trial, the knowledge of those guilty pleas could still sneak into jurors’ minds and play a role in the verdict, Zearfaus indicated.

Actually, that influence could go either way.

Jurors might assume either that the Curley and Schultz guilty pleas tend to implicate Spanier too — or they might assume that those pleas render Curley and Schultz’s testimony suspect.

One can imagine that Curley and Schultz endured crises of conscience before agreeing to testify against Spanier.

“It’s a hard position to be in,” Zearfaus said of such plea agreements in exchange for a promise to testify. “But I see it all the time.”

The state has ways of putting pressure on defendants whose testimony they need to convict others, Zearfaus said.

Those can include a threat of contempt charges and even “material witness bail,” in which a witness must post a bond that he or she forfeits upon failing to show up, Zearfaus said.

The state did that recently to ensure an Ohio man would testify against his will in a local case — although the case ultimately was resolved by a plea agreement before trial, Zearfaus said.

In some cases, a witness called to testify can plead the Fifth Amendment, which allows the witness to avoid self-incrimination — but that privilege goes away if the state grants immunity, Zearfaus said.

In cases like Curley and Schultz’s, the decision whether or not to testify could mean a better outcome than the norm vs. a worse outcome than the norm — the norm being the likely sentence when prosecutors don’t need the defendant’s testimony in another case, according to Zearfaus.

McClenahen was “somewhat shocked” at the guilty pleas, because he thought Curley and Schultz could have made valid arguments at trial against the child endangerment charges, because there was no direct supervision, custody or control of the children whose welfare they allegedly endangered.

Conversely, juries might not have bought those arguments, and Curley and Schultz might not have been willing to risk jail time, McClenahen said.

Given their non-criminal backgrounds, Curley and Schultz probably wouldn’t have fared well in prison, McClenahen said.

They also might have feared being the butt of public opprobrium even if they had prevailed at trial, according to McClenahen.

The public tends not to appreciate legal nuances as much as “what is right,” he said.

The prosecution’s offer of guilty pleas for Curley and Schultz might indicate that the state is primarily intent on getting a robust conviction on Spanier, “because he was the guy in charge,” McClenahen said.

Mirror Staff Writer William Kibler is at 949-7038.

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