How Bad Case Law Made In Philly Came Back to Haunt Graham Spanier

By Ralph Cipriano
For BigTrial.net

In a Harrisburg courtroom today, Graham Spanier, the former president of Penn State University, went on trial on two counts of endangering the welfare of a child.

Sadly, as anyone back in Philadelphia familiar with the case of Msgr. William Lynn knows, the state's original child endangerment law doesn't apply to Spanier for the same reason it didn't apply to Lynn. The law also doesn't apply to former PSU Athletic Director Tim Curley or former PSU Vice President Gary Schultz, both of whom pleaded guilty to violating it last week.

The irony is that on the same day Spanier went on trial for allegedly violating a state law that doesn't apply to him, the man behind the making of that bad case law -- Philadelphia District Attorney Rufus Seth Williams -- was indicted by the feds on 23 counts of bribery, extortion, honest services fraud, and wire fraud.

It's a shame the feds also didn't indict Williams for corrupting the law. Because that's what he did.

"The only thing necessary for evil to triumph is for men to do nothing," said Deputy Attorney General Patrick Schulte in his opening statement to the jury. "Evil thrives when men do nothing."

Not really Mr. Schulte. In Pennsylvania, evil seems to thrive when prosecutors get their hands on a lurid case of sex abuse, and the media gives them carte blanche to run with it. The results in both Philadelphia and Harrisburg -- state-sponsored witch hunts that made bad case law.

Let's start with Philadelphia. Back in 2005, a grand jury that investigated sex abuse in the Archdiocese of Philadelphia used subpoenas to pry loose the church's so-called secret archive files -- 45,000 pages of sex abuse records hidden in a safe that chronicled the sins of 63 abuser priests who had raped and molested hundreds of innocent child victims.

The city was enraged. So was District Attorney Lynne Abraham and a grand jury. But in their 2005 report, Abraham and the grand jury concluded that they couldn't indict any of the priests because their crimes had been successfully covered up over decades by a couple of former archbishops -- John Krol and Anthony Bevilacqua -- so that none of those sex crimes fell within the statute of limitations.

Abraham and the grand jury also concluded that they couldn't indict Msgr. Lynn or Cardinal Bevilacqua for endangering the welfare of children. Because the state's original child endangerment law didn't apply to supervisors, the grand jury report stated. The law only applied to people who had direct contact with children, such as parents, teachers or guardians who had "knowingly endangered" the welfare of a child.

So what did D.A. Lynne Abraham do? She led a statewide campaign to amend the original state child endangerment law to include supervisors, an amendment passed by the state legislature in 2007.

In 2011, however, a new politically ambitious Philadelphia district attorney, Rufus Seth Williams, and another grand jury looked at the same 1972 child endangerment law. And they concluded without explanation that the original child endangerment law did apply to crimes that allegedly happened in 1998-99, not only to Msgr. Lynn, but also to three other priests, as well as a lay teacher.

Msgr. Lynn went to trial in 2012 and was convicted on a single count of endangering the welfare of a child. In 2013, however, the state Superior Court overturned that conviction. The appeals court ruled that D.A. Williams's application of the child endangerment law was "fundamentally flawed." Because Msgr. Lynn didn't even know "Billy Doe," the altar boy who was allegedly raped by a priest with a prior history of abuse.

In his successful appeal, Lynn's lawyer, Thomas Bergstrom, argued to the state Superior Court that Lynn was charged ex post facto," or after the fact, under the standards of the 2007 law that was amended to include supervisors.

That's just what happened to Spanier, Curley and Schultz. They were supervisors accused of not adequately responding to a case of  possible sex abuse by Jerry Sandusky in 1998, when a mom complained about Sandusky taking a shower with her 11-year-old son, and giving the boy a bear hug. That led to the discovery of another 10-year-old who had also taken a shower with Jerry.

Those alleged incidents, however, were reported to the police, the district attorney, and to a couple of county child welfare agencies, all of whom found investigated and found that no crime had been committed.

The next incident happened in 2001, when Mike McQueary made his now famous visit to the Penn State locker room and heard and then saw Sandusky in the shower with another boy. This was the incident that McQueary reported to Paterno. Who reported it to Schultz and Curley. Who allegedly told Spanier, as well as the child psychologist who was the head of Sandusky's Second Mile Charity.

As in the Msgr. Lynn case, the alleged crimes in the PSU case, which happened in 1998 and 2001, all predate the 2007 amending of the state child endangerment law to include supervisors.

What made the PSU prosecutions possible was a 2016 decision by the state Supreme Court, which overturned the Superior Court reversal of the Lynn conviction. How did the state's highest court do that? By reinterpreting the original meaning of the 1972 state law to say it originally meant to include supervisors.

In reinterpreting the original law written in 1972, the state Supreme Court played some word games. The state's highest court also had to ignore the practical 40-year history of the state's child endangerment law, where it was applied in some 300 cases only to people who had direct contact with children, such as parents teachers and guardians.

To reinterpret the child endangerment law, the state Supreme Court also had to ignore D.A. Abraham's statewide crusade to change the law to include supervisors. And the state legislature's decision to amend the law to include supervisors.

That's why in Harrisburg today, the protagonists were left to play more word games. To see if the prosecutors would succeed in their crusade to put Graham Spanier behind bars for allegedly endangering the welfare of children he never even met.

Today's star witness was Mike McQueary, the tall, redheaded former graduate assistant who allegedly blew the whistle on Jerry Sandusky with his famous visit to the Penn State showers. Amazingly, the story McQueary tells has only improved with age in the sixteen years since it happened.

"I heard slapping sounds," McQueary told the jury. "The slapping sounds alerted me that something more than a shower was going on."

"I looked over my right shoulder" into a mirror in the locker room, he said, and from a 45 degree angle, he saw Sandusky standing behind the boy who was "right up against him."

McQueary said he took a step to his right, about six inches. And this time he looked directly into the shower and "saw the same exact thing."

The third time he looked, it was directly at Sandusky and the boy, who were now facing him, McQueary said. And this time they looked back at McQueary and separated from each other.

The prosecutor, standing next to the jury, used hand gestures to show that McQueary, as a lowly graduate assistant, was way down at the bottom of the PSU football "food chain." And that Joe Paterno, the iconic coach, was way up at the very top when McQueary went to see old Joe to tell him what he heard and saw in the shower.

Paterno, McQueary said, was "like a grandpa" to him. And Grandpa was upset when he heard that one of his former assistant coaches might have been molesting a kid.

"He kind of slumped back in his chair," McQueary said, continuing to show an amazing recall for 16-year-old incidents. "His eyes looked sad."

What did McQueary tell Gary Schultz, the prosecutor asked.

"I told him I saw Jerry molesting a boy," McQueary stated in a  booming voice. As for how Schultz could have interpreted what McQueary told him as "horseplay," McQueary was just as definitive.

"I have never ever used the word horseplay in my life," McQueary said. And it wasn't horseplay that he saw Sandusky engaging in with that boy in the shower.

"I saw Jerry molesting a boy in the shower, yes, ma'am," McQueary told the prosecutor.

On cross-examination, however, McQueary said he had never personally discussed the shower incident with "Dr. Spanier."

The trial of Spanier is expected to run all week, and conclude on Friday.