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Attorney General Will Appeal Decision To Overturn Spanier Conviction

Elissa Hill

Pennsylvania Attorney General Josh Shapiro said on Wednesday that his office intends to appeal a federal judge’s decision to vacate former Penn State President Graham Spanier’s misdemeanor child endangerment conviction.

U.S. Magistrate Judge Karoline Mehalchick issued an order and opinion on Tuesday afternoon granting Spanier’s petition to throw out the March 2017 conviction for his handling of a 2001 report about former Penn State football assistant coach Jerry Sandusky with a boy in a campus locker room shower. Spanier had been scheduled to begin serving a two-month county jail sentence on Wednesday but now remains free.

Spanier was charged and convicted under a change to Pennsylvania’s child endangerment law in 2007 that added liability for those who did not directly supervise a child but employed or supervised someone who did. Prosecutors said Spanier’s actions represented an ongoing course of conduct over the years and appropriately fell under the 2007 statute.

Mehalchick, however, ruled that the conviction “was based on a criminal statute that did not go into effect until six years after the conduct in question, and is therefore in violation of Spanier’s federal constitutional rights.” She also agreed with Spanier’s attorneys that the jury at his trial was improperly instructed that he could be convicted under the 2007 law.

Shapiro’s office will now take the case to the U.S. Court of Appeals for the Third Circuit. In a statement on Wednesday, Shapiro said that Mehalchick exceeded her authority in overturning the Dauphin County Court conviction and state Superior Court’s ruling rejecting Spanier’s appeal. Pennsylvania’s Supreme Court declined to hear the case.

“In a last-minute and highly unusual decision yesterday evening, a federal magistrate set Spanier free just before he was finally about to begin serving his deserved sentence,” Shapiro said. “Federal courts have very limited power to act in state criminal proceedings, and this ruling plainly exceeded that power.

“As the Pennsylvania Supreme Court has made crystal clear, Spanier’s conduct was illegal. The Office of Attorney General will quickly appeal this ruling to hold him accountable for his conduct covering up child sexual abuse. No one is above the law.”

Spanier was initially charged in 2012 for his decision, along with former Athletic Director Tim Curley and Senior Vice President Gary Schultz, to not take former football assistant Mike McQueary’s 2001 report about Sandusky to child welfare or law enforcement authorities. Instead, they 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. All three administrators have maintained that they did not believe McQueary had described child abuse, only that it was inappropriate “horse play.”

At trial, Spanier was found not guilty on felony counts of child endangerment and conspiracy and previously had charges including perjury, obstruction and failure to report child abuse dismissed.

“Graham Spanier, as president of Penn State University, was personally advised that children were being sexually abused on school property,” Shapiro said on Wednesday. “Evidence proved he chose not to help the children — but instead to cover up the abuse, despite being well aware of his responsibility as a supervisor.”

Mehalchick’s ruling gave prosecutors 90 days to retry Spanier under the child endangerment law written in 1995, which was in place at the time of the 2001 report. She did not agree with another argument by Spanier’s attorneys that an exception to the two-year statute of limitations for the child endangerment law had been improperly applied, leaving open the avenue for prosecutors to retry the case.

Curley and Schultz both pleaded guilty to misdemeanor child endangerment charges in 2017 and served brief jail sentences.

Sandusky was convicted in June 2012 on 45 counts related to child sexual abuse and was sentenced to 30 to 60 years in state prison. He maintains his innocence and has continued to appeal his conviction.

Spanier was forced out as Penn State’s president in November 2011, days after Sandusky, Curley and Schultz were first charged. He remains a tenured faculty member on administrative leave.

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About the Author

Geoff Rushton (StateCollege.com)

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

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