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Expert: Penn State report ups legal risk for former president

Penn State University President Graham Spanier, left, and Jerry Sandusky attend the Second Mile Celebrity Golf Classic, in State College, Penn. in 1997.
Penn State University President Graham Spanier, left, and Jerry Sandusky attend the Second Mile Celebrity Golf Classic, in State College, Penn. in 1997.Reuters file

Of four former top Penn State employees accused by an independent investigation of concealing sexual abuse by Jerry Sandusky, one is dead and two are facing charges of perjury and not reporting abuse.

The fourth, former university president Graham Spanier, remains on the Penn State staff and hasn't been charged.

But a report published Thursday on what went wrong at Penn State outlines Spanier's actions and could increase the likelihood that prosecutors will pursue criminal charges against him as well, a legal expert said.

"Do I think he will face further ramifications?" said Drexel University law professor Dan Filler. "He’s definitely at risk."

The 276-page report on the findings from of a special investigation led by Louis Freeh emphasizes the roles of "the four most powerful people" at Penn State "who failed to protect against a child sexual predator harming children for over a decade."

That lumps Spanier with former Penn State vice president Gary Schultz and former university athletic director Timothy Curley, and former head football coach Joe Paterno, who died in January. Schultz and Curley are accused of failing to report the allegations of sexual abuse by Sandusky, and of committing perjury when questioned by a grand jury.

Penn State report: What it says about Sandusky’s associates

These men "concealed Sandusky’s activities from the Board of Trustees, the University community and authorities," concluded Freeh, who was hired by Penn State to conduct the investigation.

Spanier rejected that accusation.

"Unfortunately, Judge Freeh's conclusion …  that Dr. Spanier was engaged in a course of 'active concealment' is simply not supported by the facts or by the report itself," said a statement Spanier issued Thursday through his attorneys, Peter Vaira and Elizabeth Ainslieon Thursday.

Sandusky, 68, was arrested in November 2011 and found guilty of 45 counts of child sexual abuse. He is in jail awaiting sentencing.

The Freeh report looked into the role of individuals and the institution of Penn state in failing to stop Sandusky. It says Sandusky assaulted boys on university property and focused on two incidents — a 1998 sexual abuse complaint that was investigated by police and a 2001 eyewitness report of Sandusky apparently involved in sexual activity with a 10- to 12-year-old boy in a shower.

The statement from Spanier’s lawyers repeated his claim that he was never contacted by law enforcement or other officials about criminal conduct on the part of Sandusky.

"As he told Judge Freeh himself last Friday and has steadfastly maintained, at no time in his 16 years as President of Penn State was Dr. Spanier told of any incident involving Jerry Sandusky that described child abuse, sexual misconduct, or criminality of any nature."

Email conversations documented by the report seem to suggest that Spanier was informed by Shultz about the 1998 investigation of Sandusky, which arose after a mother alleged that the coach sexually assaulted her 11-year-old son in a shower.

The notes reveal little about Spanier’s reaction to the investigation and no record to suggest that he or the others addressed Sandusky about the allegations.

The report documents how, after witnessing Sandusky in sexual activity with a child in the locker room showers on campus in 2001, graduate assistant Mike McQueary reported it to coach Joe Paterno, who passed that information on to Curley and Shultz, who brought it to Spanier.

There is no record of Spanier speaking directly to McQueary.

"(Spanier's) biggest defense is he didn’t hear it from McQueary," said Filler. "He heard it from Curley and Schultz."

The report did not make clear how McQueary's story was spelled out to Spanier, but it says that records show that Curley, Schultz and Spanier devised a plan to tell Sandusky they thought he had a problem, offer him professional help and advise him not to bring children into campus facilities.

In email cited by the report, Spanier agrees with this approach, which he calls "humane and reasonable."

"The only downside for us is if the message isn’t 'heard' and acted on, and we become vulnerable for not having reported it. But that can be assessed down the road," he said in the email.

No one reported the alleged rape of the boy to the police and there is no record suggesting that they attempted to identify the boy or find out if he had been harmed, the report said.

Spanier also did not report the incident to the Board of Trustees at the time, only doing so under pressure after he was called to testify before the grand jury in the Sandusky case, along with Curley and Schultz, the report said.

The report does not accuse Spanier of lying but it does provide fodder for a prosecutor to probe inconsistencies in Spanier’s statements, raising the risks of charges for the former university president, said Filler.

"If prosecutors decide he lied under oath and they can prove it, that's where his risk is," he said. "As with other cases -- like the Clinton case — it’s often not the bad conduct. It’s the lying under oath."

Another possible risk to Spanier, said Filler, is the possibility that Shultz and Curley strike a plea deal in exchange for damning testimony against Spanier.

The report says Spanier resisted independent investigation of Sandusky, "discouraged discussion and dissent" and had "a striking lack of empathy for child abuse victims."

"Spanier just does not go to the board with anything," said Filler. "That may not be criminal, but boy that is ugly for lots of reasons. He has a duty to bring risks to the university to the board, and he doesn’t."

Moreover, Filler said, the comprehensiveness and caliber of the Freeh report — led by former U.S. attorney, FBI director and federal judge — provides investigative legwork for any potential prosecutor.

"The report isn’t evidence," said Filler. "But it makes it easy for a prosecutor to see what there is. And it does change the politics of the decision to prosecute. And (prosecutors) are elected officials, they are sensitive to this."

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