for BigTrial.net
Graham Spanier's conviction on a single count of child endangerment doesn't make much sense from a variety of different angles, his lawyers argued in an appeal brief filed yesterday in Commonwealth Court.
First, the crime that the former Penn State president was convicted of was Spanier's response, or lack thereof, to an alleged 2001 rape in the Penn State showers of a ten-year-old boy, a crime supposedly witnessed by wacky whiste blower Mike McQueary.
Let's skip over the fact that McQueary told five different versions of the story about what he supposedly saw and heard in the shower that night, and that he later admitted in writing in an email to the prosecutor that they got the grand jury report wrong, and that he had never actually seen a rape.
The statute of limitations for child endangerment in Pennsylvania is only two years. So by the time the attorney general's office got around to charging Spanier, in 2012, the statute on the 2001 imaginary sex-in-the-showers crime had long expired.
Second, the way the resourceful prosecutors got around the statute of limitations problem at trial was to claim that Spanier had engaged in a continuing course of conduct over the years, namely a cover up that extended until the time they charged him, in 2012. But the jury at Spanier's trial found him not guilty of engaging in a continuing course of conduct to endanger the welfare of a child.
So, the conviction was on flimsy ground.
But third, the resourceful trial judge's post-conviction solution on how to get around the statute of limitations problem was to raise an exception from the Philadelphia archdiocese sex abuse case that allowed for someone accused of endangering the welfare of a child to be charged up until the year that the alleged [in our case unknown and possibly imaginary] rape victim was 50 years old.
Again, to wrap our heads around this pretzel logic we have to forget that the alleged victim never came forward, and the prosecutor at trial claimed his identity was known "only to God."
The problem with that exception employed post-trial by the trial judge was that it was never raised before, during or after the Spanier trial by the prosecutors. So Spanier's lawyers say the exception shouldn't apply.
Fourth, Spanier's lawyers make the point that the prosecutors charged Spanier in 2011 with violating the child endangerment statute with the 2001 imaginary rape.
The problem here is that the state's 1972 child endangerment law only applied to people who had direct contact with children, such as parents, teachers and guardians. The law was amended after the Philadelphia archdiocese sex abuse scandal in 2007, to include supervisors such as Msgr. William J. Lynn, the archdiocese's former secretary of clergy, who was in charge of supervising abusive priests.
The problem in the Spanier case, his lawyers say, is that the attorney general's office is in effect charging Spanier under the 2007 amended law, which is unconstitutional.
In the case of Msgr. Lynn, his conviction on one count of child endangerment in 2012 was overturned by the state Superior Court because the original law didn't apply to him. But that sensible decision was overturned by the state Supreme Court.
The state Supreme Court's decision in the Lynn case basically got around the fact that Lynn wasn't in direct contact with children by saying that if an administrator knowingly placed a sexually abusive person in proximity to children under his care, then he could be charged with child endangerment.
During the Spanier trial, however, his lawyers argue that the prosecution failed to offer any evidence that Spanier, the president of a university, "owed a duty of care to minor children, or that he was supervising the welfare of those children."
Spanier was sentenced to a jail term of between four and twelve months, a $7,5000 fine, 200 hours of community service, as well as being on the hook for paying the costs of prosecuting him.