Defense In Graham Spanier Trial Rests Without Calling One Witness

By Ralph Cipriano
for BigTrial.net

At 9:35 this morning, Samuel W. Silver, the lawyer for former Penn State President Graham Spanier, stood up in a Harrisburg courtroom and without calling a witness, told the judge that the defense was resting its case.

Five minutes later, Silver began his closing argument to the jury by declaring, "There was no evidence of a crime by Graham Spanier."

"This case involves judgment calls," Silver told the jury. "They made judgment calls," Silver said about Spanier and his two alleged co-conspirators -- Tim Curley and Gary Schultz -- before they pleaded guilty and became government witnesses.

"They made judgment calls," Silver repeated about Spanier, Curley and Schultz. "They did not engage in crimes; they did not engage in a conspiracy."

"They took the matter seriously," Silver said about the now familiar plot line of the Jerry Sandusky
sex scandal. "They did not stand by and do nothing."

Silver's announcement to the judge came as somewhat of a surprise. The day before, when the government rested its case, there was talk among Penn State loyalists that the defense was planning to call up to four witnesses. The defense case was supposedly built around expected testimony from John Snedden, a Federal Investigative Services special agent who had done a background check of Spanier for a top-security government clearance in 2012, and had found no evidence of wrongdoing by Spanier at Penn State.

But Silver made his own judgment call that the prosecution didn't prove its case. So he went right to his closing argument.

The defense lawyer began by going through the law regarding the crimes that Spanier is charged with: two counts of endangering the welfare of a child, and one count of conspiring to endanger the welfare of a child.

To find Spanier guilty of endangering the welfare of a child, Silver said, the jury would have to find that Spanier interfered with or prevented someone from making a report of suspected child sex abuse.

The problem with that, Silver said, was that the government did not present any evidence that Spanier was ever told that Jerry Sandusky "was engaging in sexual crimes with minors."

"Nobody told Graham Spanier," Silver said. The defense lawyer went through every one of the fifteen witnesses called by the government, who turned out to be the only witnesses in the case.

"Her witnesses," Silver said, referring to his courtroom rival, Deputy Attorney General Laura Ditka. "Her witnesses made the defense case."

Silver returned to the language of the child endangerment statute. To find Spanier guilty, Silver said, the jury would have to conclude that the government had presented evidence beyond a reasonable doubt that Spanier had "knowingly violated" his alleged duty of care to protect the welfare of children that he was supposedly supervising.

"Graham Spanier was not aware that children's welfare would be endangered," Silver said. To find Spanier guilty, the jury would also have to conclude that Spanier was supervising the welfare of Second Mile child victims abused by Sandusky, many of whom were visitors to the Penn State campus.

The jury would also have to find that Spanier had acted "knowingly, intentionally and recklessly" when he allegedly interfered with or prevented anyone from reporting a suspected crime of child sex abuse.

Another element to the crime of child endangerment, Silver said, was the jury would have to find that in the course of performing his official duties Spanier "came into contact" with the child that he had allegedly endangered, the boy in the showers. Because the child endangerment statute required that Spanier would have had to knowingly endangered the welfare of the child he was supervising.

But the government presented no evidence of that.

To find Spanier guilty of conspiracy, Silver said, the jury would have to believe that Spanier "agreed to enter into a conspiracy to commit endangering the welfare of a child." And that Spanier and his co-conspirators had "agreed to put children in danger," and took actions toward that goal.

To anybody who sat through the two days of fact-free testimony that constituted the government's case, any of those findings would be a stretch. But this is sex abuse we're talking about, Penn State style, starring  naked good old boy Jerry Sandusky bumping and grinding in the shower with little boys. It's like dousing a house made of straw with a couple cans of gasoline and waiting for a spark to fly.

Silver talked about the government's cooperating witnesses, former Penn State Athletic Director Curley, and former Penn State Vice-President Gary Schultz.

"These were the stars of their show," Silver said about the government's cae. But going by their testimony, Silver said, neither Curley nor Schultz ever told Spanier that what Mike McQueary witnessed in the showers was sex abuse.

Silver repeated what Schultz told the jury: "Jerry was always horsing around," Silver quoted Schultz as saying. "Schultz told Spanier it was horseplay."

Of all the government's fifteen witnesses, Silver said, only two, Curley and Schultz, testified that they spoke directly to Spanier about what McQueary told them.

McQueary, Silver reminded the jury, never spoke directly to Spanier about what he witnessed in the showers.

There was no conspiracy at Penn State, Silver said, summing up. Nobody told McQueary, or anybody else, to "keep things quiet, to keep their mouths shut." On the witness stand, both of the government's star witnesses, Curley and Schultz, testified that took the matter seriously. They were trying to do the right thing, Silver said. And they also testified that they did not participate in any conspiracy to cover up, and not report the infamous shower incident.

"There is no evidence that Graham Spanier knowingly endangered the welfare of children," Silver said. He concluded by asking the jury to find his client not guilty.

When Deputy Attorney General Laura Ditka stood up to give her closing, she wanted to clear up one thing right away.

"Gary Schultz and Tim Curley are not our star witnesses," she said, "They're criminals." And you can't count on criminals to tell you that they knowingly committed crimes.

With a paucity of facts to draw on, Ditka, Iron Mike's niece, turned to fireworks. Spanier, Curley and Schultz, she said, were all guilty of turning their backs on the welfare of children, in favor of protecting themselves and Penn State from scandal.

"Jerry Sandusky was left to run wild," she said.

She talked about the plan that Spanier, Curley and Schultz had agreed on. To confront Jerry Sandusky with the shower incident. And to inform Sandusky that he was no longer allowed to bring children onto Penn State property.

The PSU officials were hoping that Sandusky would admit to a problem and agree to seek help. If not, the PSU officials planned to report the shower incident to the child psychiatrist who led the Second Mile charity that employed Sandusky as a counselor. And also report the shower incident to the Department of Public Welfare, so they could investigate whether Sandusky's conduct amounted to sex abuse.

But there was a "downside" to that approach, as Ditka reminded the jury while she quoted from an email sent by Spanier. The downside was "if the message wasn't heard" by Sandusky, Spanier wrote to Curley and Schultz, then Spanier, Curley and Schultz "become vulnerable for not having reported it."

When you're conspiring to cover up sex abuse, it's not too smart to lay out the plot in an email chain that subsequently become a government exhibit. That's not usually how coverups work. But Ditka skipped over all that to blast the usual villains in the Penn State sex scandal narrative, starring that naked Jerry Sandusky cavorting in the showers with little boys.

"All they cared about was their own self interest," Ditka told the jury about Penn State's top officials. "Instead of putting him [Sandusky] on a leash," she said, "they let him run wild."

Ditka recounted to the jury the first incident Sandusky was ever accused of. Back in 1998, a mother went to the cops because Sandusky had allegedly given her 11-year-old son a naked bear hug in the shower. And he allegedly picked the boy up and stuck him under a shower head to allegedly wash the soap out of his ears.

The boy, a member of the Second Mile charity, had been lured into the showers by the promise of a pair of "Joe Paterno sox," Ditka reminded the jury. "The lure of Penn State football is strong."

Ditka spoke about what she described as the cover-up mode employed by those at the "top of the totem pole" at Penn State, namely Spanier, Curley and Schultz. And then she vividly contrasted it with the whistle blowing of Mike McQueary, whom she described as "the low man on the totem pole."

Ditka dove once more into all the salacious details of the McQueary shower story -- Sandusky's naked "body moving slowly," "slapping sounds," and "skin against skin."

"What do you think?" she asked the jury. "That's horseplay?"

If it's horseplay, she said, why was the Penn State president and two of his top officials meeting about it on the weekend? Why are Schultz and Curley sitting around Joe Paterno's kitchen table on a Sunday morning if it's just horseplay they're talking about, Ditka argued.

"Skin to skin, hips moving against a boy is not horsing around," she repeated. This is Penn State, she said, where they have ten thousand kids.

 "Every time a towel is snapped," Ditka asked, do university officials gather at Graham Spanier's house?

They knew what they were doing, Ditka said about Spanier, Curley and Schultz. "They come up with
a plan," she said. "You have to keep it a secret."

That's why they waited ten days to interview whistle-blowing eyewitness McQueary, Ditka said. Because they didn't want to know the truth. They just wanted to keep the truth under wraps.

"They had a problem and they didn't want to deal with it," Ditka said. The result was, "They own it."

"They prevented a report of sex abuse," Ditka said. "They knew what they were dealing with."

Instead of tackling the problem head on, Ditka said, by hauling McQueary in and finding out exactly what had happened in the shower, PSU's top officials tried "to soft-shoe it."

And when time dragged by, Ditka said, Spanier assured a worried Gary Schultz that "It's taken care of."

Here, Ditka was taking some liberties with trial testimony. When asked on the witness stand who had told him that the shower incident had been investigated and "taken care of," Schultz couldn't remember.

"I can't say for sure that it was Graham Spanier," Schultz told the jury.

It was a quote that Silver had read to the jury. Then he warned that if Ditka tried to use that quote to prove Spanier was guilty, it fell far short of proof beyond a reasonable doubt.

But that wasn't going to stop Ditka.

It was like the scene in Animal House when Bluto gave the speech to his frat brothers about the Germans bombing Pearl Habor. Otter wondered whether he should correct Bluto, but Boon told him, "Forget it, he's rolling."

Like Bluto, Ditka was rolling.

"Graham Spanier told him [Schultz] 'Its taken care of," Ditka yelled. Before she was done, Ditka would not only declare that it was Spanier who had told Schultz "It was taken care of." She  would also ccuse Spanier of deliberately "lying to Schultz."

Next, Ditka reminded the jury that when the Penn State sex abuse scandal exploded, Spanier insisted on running on the university's website two letters of support for Curley and Schultz.

"I support Gary and Tim," Ditka recounted the statements as basically saying. "Not a thought about the kids," she lamented. "They didn't care about kids."

The most entertaining part of Ditka's closing argument was when she trashed both of her star witnesses.

"Tim Curley," she declared, was "untruthful 90 percent of the time."

"Gary Schultz, I would suggest to you was more truthful," Ditka told the jury. That's because he cried on the witness stand.

You can't stage a courtroom tragedy without tears.

"He was crying for a whole lot of reasons," Ditka told the jury. Such as having to appear in court to testify against his old friend, Graham Spanier. But to counter those tears in her courtroom soap opera, Ditka brought up the tears of Victim No. 5.

Victim No. 5 was another government witness brought into the courtroom with much fanfare and extra security. Victim No. 5 had testified about being abused by Jerry Sandusky in the same showers where McQueary had previously seen Sandusky frolicking with another naked boy.

Victim No. 5, Ditka told the jury, wakes up crying on "a lot of mornings."

Ditka's weakest moment came when she left her emotional appeals behind to delve briefly into the law in the case, which for her sake, was probably best left undisturbed.

"There's more than enough proof," she concluded. "They knew the animal they were letting loose on the world," she said. Then she asked the jury to "find him [Spanier] guilty."

By the time she sat down, it was quite a performance. If the jury goes strictly by the law, Spanier walks. But if the jury is swayed by emotion, Spanier is toast.

It's as simple as that.

And God help the defendant if the jury ignores the judge's instructions and tunes in to the media coverage of the case, where they're playing all the old familiar tunes in the Penn State scandal, as sung by the attorney general's office, Sara Ganim and Louie Freeh.

There's a reason why Curley and Schultz pleaded guilty. It's an uphill battle when you're fighting a story line that everyone thinks they know.

There are problems with defending Graham Spanier. The former PSU president comes off as an intellectual who's aloof. He also didn't take the stand in his own defense. Even though the judge told the jury that they should consider Spanier "an innocent man," some jurors may believe he's hiding something.

Spanier is also on trial before a Dauphin County represented by a button-down Philadelphia lawyer. That might be another problem.

Meanwhile, the prosecution has Iron Mike Ditka's folksy niece tossing red meat at the jury. And the problem of his two former co-defendants having already pleaded guilty.

Incited by Iron Mike's niece, a Dauphin County jury might just decide to teach Graham Spanier a lesson with some frontier justice.

Or they could see through all the hype and emotion, glimpse the law, and send Spanier on his merry way, so he can proceed with lawsuits against Penn State and Louie Freeh.

Today, after Judge John Boccabella went over the legalities of the charges in the case, the jury began deliberating. Within 15 minutes, they had a question for the judge. They subsequently had two more questions.

The jury asked the judge to give them the definition of a conspiracy. They wanted to know the definition of acting recklessly. They also asked in order to have a conspiracy, does a crime necessarily have to have been committed?

Absolutely, the judge said.

Ditka had to be seething over this. If only she could have gotten in front of the jury one more time for a rebuttal. She could have talked about the tears of Victim No. 5. And that animal named Sandusky that the guys at the top of the totem pole at Penn State had knowingly turned loose on helpless children that they didn't care about.

By 7 p.m., after dinner was brought in, the jury was still deliberating. One of the jurors asked the judge if they could take a vote on whether to retire for the night.

No, the judge said. He alone would decide when they were going home.

After 8 p.m., the judge finally relented and dismissed the jury for the evening. Deliberations are scheduled to resume tomorrow at 9:30 a.m.

Ralph Cipriano can be reached at ralph@bigtrial.net.