Date Change of Alleged Shower Incident May Lead to Dropped Charge in Jerry Sandusky Case

One of the two charges against two Penn State administrators will likely be dismissed now that prosecutors have come forward to change by one year the date they allege former assistant football coach Jerry Sandusky sexually assaulted a boy in the team’s showers, legal experts said.  Read more after the jump.

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Five weeks ago, the attorney general’s office argued in a court filing concerning the charge of failing to properly report suspected child abuse against Tim Curley and Gary Schultz that the statute of limitations had not expired because the incident involving “Victim 2” occurred in March 2002.

On Tuesday, Sandusky case Judge John Cleland granted prosecutors’ request to amend that offense date to February 2001.

Under a timeline about the statute of limitations that was included in the March 30 filing by state prosecutors, the failure-to-report charge now appears to fall outside the time limit by nine months.

“Based on the prosecution’s own pleading, the statute of limitations is 10 years from the event,” Tom Farrell, Schultz’s lawyer, said in a statement on Friday. “There is no dispute that the statute of limitations has expired on the failure to report count.”

Asked whether that means the charge will be dismissed, the attorney general’s office declined to comment.

University of Pittsburgh law professor David A. Harris predicted the failure-to-report part of the case soon will be dropped.

“We generally don’t have, in the law, things that are as clear as this, but here we do have one,” Harris said. “A statute of limitations means that too much time has gone by to prosecute, and they are to be enforced to not put people to trial unfairly.”

Barb Zemlock, president of the Pennsylvania Association of Criminal Defense Lawyers, said prosecutors should move quickly to withdraw charges they cannot pursue so that “all involved — the prosecution and the defense — can focus on the issues that are before the court, and not those that are no longer viable.”

The failure-to-report charges under the state’s Child Protective Services Law are classified as summary offenses, carrying up to 90 days in jail and a $200 fine.

Curley, the school’s athletic director now on leave, and Schultz, the now-retired vice president for business and finance, also face felony perjury counts for allegedly lying to the grand jury that investigated Sandusky. The perjury charges have potential penalties of seven years in prison and $15,000 fines.

The perjury charges pertain to much more recent events, when the men testified before a grand jury early last year. Their lawyers are seeking dismissal of the perjury counts on different grounds.

In seeking the date change, prosecutors said only that “specific and authenticated findings” led them to conclude that the shower incident occurred in February 2001.

It’s not clear what effect, if any, the date change will have on Sandusky’s prosecution on 52 criminal counts for the alleged abuse of 10 boys over more than 15 years, claims he has consistently denied. Sandusky’s lawyers are not arguing the statute of limitations has run in his case. His trial is scheduled for June 5.

Crawford County prosecutor Francis J. Schultz, who leads the state district attorneys’ association and is not related to Gary Schultz, said there are no hard and fast rules about how soon prosecutors should act after they realize a case cannot proceed.

“If somebody was incarcerated on a charge because they didn’t post bond, I would think you’ve got to act immediately when you know you can’t go forward with a case,” said the prosecutor, who was careful to say he was not commenting specifically on the Curley and Schultz cases.

“It’s really fact-driven,” he said. “You need to know the facts and the dates and when things are reported.”

Uncertainty about the facts surrounding the Victim 2 incident, in a Penn State football team shower, has emerged as a major issue in the case, in large part because it was witnessed by Mike McQueary, a member of the coaching staff who was a graduate assistant at the time.

McQueary reported what he saw to coach Joe Paterno, who in turn contacted Curley and Gary Schultz. Members of the university’s board of trustees have said Paterno’s response, in which he did not contact university police directly, represented a failure of leadership and was a factor in the decision to remove him as head coach a few days after Sandusky was arrested.

Even before the “Victim 2” offense date was changed, Farrell and Curley lawyer Caroline Roberto had been arguing the statute of limitations had expired on other grounds.

They have said the men’s jobs with Penn State — a “state-related” university that gets public money but is not state-owned — did not make them public officials, and therefore, the statute of limitations was two years.

Prosecutors maintained that Curley and Schultz were public officials, so the statute was effectively 10 years.

In the March 30 filing, deputy prosecutors Bruce Beemer and James Barker said that meant the statute expired in March 2012, so the charges against Schultz and Curley were filed in time. But now that the state has moved back the offense date to February 2001, the 10-year time period appears to have expired nine months before the two men were arrested on Nov. 7.

“The investigation into these events is ongoing,” Beemer and Barker wrote in March. “If there is evidence establishing an offense date other than that reflected in the record thus far, the commonwealth will address this issue in light of the new evidence.”

The court docket indicates a status conference with Dauphin County Judge Todd Hoover is scheduled for June 1.

ESPN