Graham Spanier Beats The Rap; Will Ruling Help Msgr. Lynn?

By Ralph Cipriano
for BigTrial.net

Graham Spanier was scheduled to report to the Dauphin County Prison this morning at 9 a.m.

But last night, a federal judge threw out Spanier's 2017 conviction on one misdemeanor count of child endangerment. In a brief, two-page order, U.S. Magistrate Judge Caroline Mehalchick ruled in favor of the former Penn State University president's writ of habeas corpus, basically a legal request to "produce the body" of a convicted person before a judge, to decide if there's a lawful reason for that person to be detained.

In the case of Spanier, scheduled to go to prison today for two months, the judge decided that there wasn't a lawful reason to jail him, no matter what prosecutors said. So the judge wrote that Spanier's writ of habeas corpus "is GRANTED with respect to the first two grounds raised in the petition, namely that the application of the 2007 child endangerment statute to his 2001 conduct, and the jury instruction based on the 2007 statute, as applied to Spanier, are unconstitutional."

The simple concept at work in the federal magistrate's decision is something that Big Trial and some state appeal judges have been arguing for years, with mixed results. Namely that's it's unconstitutional for prosecutors to try a person ex post facto, or after the fact, under the standards of the state's original child endangerment law, if that law originally didn't apply to him.

Exhibit No. 1 Of An Overzealous Prosecutor

Accordingly, Judge Caroline Mehalchick wrote, "Spanier's conviction and sentence for one count of Endangerment of the Welfare of a Child in the Court of Common Pleas of Dauphin County . . . are VACATED."

It was a rare moment of sanity in this whole sorry travesty of a case.

The judge, however, gave the vindictive and ethically challenged state attorney general's office 90 days to decide if they will retry Spanier on a misdemeanor charge. We're talking about a defendant with an otherwise spotless record, a high level national security clearance, and serious health problems that include ongoing treatments for cancer, heart disease, high blood pressure, and depression.

The Spanier case is similar to the prosecutorial witch hunt staged for Msgr. William J. Lynn, the former secretary for clergy of the Archdiocese of Philadelphia. Both cases are a disgrace to Pennsylvania law and journalism. They both feature unscrupulous prosecutors running with sensational rape allegations that turned out to be bogus, judges who put politics above the law, and a gullible media that refuses to reexamine its own irresponsible conduct, or hold judges and prosecutors accountable for gross miscarriages of justice.

Lynn is awaiting retrial later this year after his 2012 conviction on one misdemeanor count of child endangerment that has twice been overturned by an appeals court. Will the Spanier decision help Lynn beat the rap?

Since there's a gag order in the Lynn case, nonsensically imposed by Philadelphia Common Pleas Court Judge Gwendolyn Bright, the monsignor's lawyers were unable to comment. Expect Lynn's lawyers, however, to use Judge Mehalchick's order as further evidence in court that their guy shouldn't be retried by new Philly D.A. Larry Krasner.

In the Spanier case, the AG's office was prosecuting the former Penn State president after the fact for allegedly not protecting the rights of children during the Jerry Sandusky sex abuse scandal, when Spanier was discussing with two top lieutenants the infamous alleged rape in 2001 of a ten-year-old boy in the showers.

The alleged rape turned out to be bogus. After 18 years, a victim has never come forward; prosecutors claimed his identity was known "only to God." But a previously unknown federal investigation conducted on the Penn State campus in 2012 by former NCIS Special Agent John Snedden concluded that the allegations didn't make any sense, and that the only witness to the alleged crime, former Penn State Assistant Coach Mike McQueary, wasn't credible.

Spanier, however, as well as Lynn, should never have been prosecuted because the state's original child endangerment law clearly didn't apply to them.

Unless, of course, you're an unscrupulous prosecutor in search of headlines. Then you can jam somebody up while ignoring the law, and expect the media to take your side, cheering you on while you stage a modern-day witch hunt. That's exactly what happened with the attorney general's office in the case of Spanier, and exactly what happened with former Philly D.A. Rufus Seth Williams, in the case of Lynn.

Former D.A. Williams is a known amoral scoundrel and reprobate. Today, he's in protective custody in federal prison doing five years after he pleaded guilty to 29 crimes in 2017 that included taking bribes, committing extortion, and stealing from his own mother. But his legacy of prosecutorial overreach lives on in the offices of our grandstanding Attorney General, Josh Shapiro, who knows from his recent experiences with the Catholic Church in Pennsylvania that there's nothing like sex abuse charges to generate headlines. Even if you have to dig up dead bodies in an ecclesiastic graveyard to find your dirt.

Right on cue, Shapiro today announced that he would appeal the magistrate's order, guaranteeing him a fresh set of headlines in the gullible Philadelphia Inquirer, my old newspaper, whose reporting on both of these cases is and has been a disgrace to journalism.

"Graham Spanier . . . was personally advised that children were being sexually abused on school property," Shapiro announced in a press release. "Evidence proved he chose not to help the children -- but instead to cover up the abuse, despite being well aware of his responsibility as a supervisor."

Shapiro called the magistrate's ruling "last minute and highly unusual."And he decided it was a call to action.

Exhibit No. 2 

"As the Pennsylvania Supreme Court has made crystal clear, Spanier's conduct was illegal," Shapiro asserted. "The Office of Attorney General will quickly appeal this ruling to hold him [Spanier] accountable for his conduct covering up child sex abuse. No one is above the law."

Except, of course, headline-hunting, grandstanding prosecutors like Josh Shapiro.

Amazingly, Shapiro's statement was so filled with lies and distortions that Spanier's defense lawyers, who didn't even put up a defense at his transparently ridiculous trial, and declined comment at every turn in the appeal process, were motivated to put out a statement last night ripping the A.G.

"We are dismayed that the Pennsylvania Attorney General, the highest law enforcement official in the state, would blatantly and prejudicially misrepresent facts," Spanier's lawyers wrote.

"There is no evidence that Graham Spanier was personally advised that children were being sexually abused," wrote Samuel W. Silver and Bruce P. Merenstein. "And Attorney General Shapiro knows that the Pennsylvania Supreme Court made nothing 'crystal clear' about Dr. Spanier's conduct, as it did not hear this case on the merits at any time."

"We are stunned that Mr. Shapiro accuses Dr. Spanier of engaging in a 'cover-up,' when a jury expressly acquitted Dr. Spanier of having engaged in a conspiracy or a continuing course of conduct."

The statute of limitations for child endangerment is two years. In order to keep the charges alive well past the statute of limitations, the prosecutors argued in 2017 that beginning back in 2001 Spanier had engaged in a "continuing course of conduct" to orchestrate an ongoing cover up of Sandusky's crimes.

The jury in the case, however, rejected that argument and found Spanier not guilty of a felony count of child endangerment, as well as another felony count of conspiracy. The day after the jury convicted Spanier on one misdemeanor charge of child endangerment, the jury foreman told reporters it had been a mistake.

"We will continue to defend Dr. Spanier against this overzealous and unlawful prosecution," Spanier's lawyers wrote. "And we will continue to do so in the courts, where the dispute belongs -- and not through hyperbolic statements like that of the Attorney General."

The state's original 1972 child endangerment law said: "A parent, guardian or other person supervising the welfare of a child under 18 years of age commits a misdemeanor of the second degree if he knowingly endangers the welfare of a child by violating a duty of care, protection or support."

For nearly 40 years in Pennsylvania, that law in practice was applied only to adults who had direct contact with children, such as a parent, guardian or teacher who "knowingly endangers the welfare of a child."

In 2005, then Philadelphia District Attorney Lynne Abraham and a grand jury concluded that the original child endangerment law did not apply to Cardinal Anthony Bevilacqua, Msgr. Lynn, or any other high-ranking official of the Archdiocese of Philadelphia who had a supervisory role over the welfare of children. The grand jury, after investigating four decades of sex abuse and cover ups in the archdiocese, issued a report that said it couldn't legally indict Lynn or Bevilacqua for child endangerment because the original 1972 law didn't apply to supervisors.

D.A. Abraham then led a state-wide crusade to change the law, and the state legislature complied, amending the law in 2007 to specifically include supervisors. But then a new, unscrupulous Philly D.A., Rufus Seth Williams, came along in 2011 and decided, without explanation, that in order to grab some headlines, that the original child endangerment law did apply to supervisors.

In 2013, a year after Lynn was convicted, the state Superior Court overturned that conviction, saying the original child endangerment law didn't apply to Lynn. The monsignor was accused of failing to protect an altar boy dubbed "Billy Doe" during the 1998-99 and 1999-200 school years from being repeatedly raped by Father Ed Avery, a priest with a history of sex abuse.

Billy Doe, whose real name is Danny Gallagher, also claimed that he was raped by another priest, as well as his homeroom teacher. But Gallagher, a former drug addict and heroin dealer with a half dozen arrests to his credit, was subsequently outed as a fraud. The former lead detective in the case, Joe Walsh, came forward to say that he repeatedly caught Gallagher telling one lie after another, and that Gallagher finally admitted to him that he had made up all the lurid allegations of multiple rapes by three attackers that he had initially reported to archdiocese social workers.

But in the Lynn case, the state Supreme Court in 2015 upheld Lynn's conviction, and overruled the Superior Court's reversal by reinterpreting the language of the original 1972 child endangerment law to say that it actually did include supervisors.

Exhibit No. 3

To do this, the state Supreme Court had to basically ignore nearly 40 years of case law as to how the child endangerment statute was actually applied in Pennsylvania, Philly D.A. Abraham's crusade to change the law, and the actions of the state legislature to amend the law in 2007 to specifically include supervisors.

To get around all that, the state Supreme Court played a word game.

Again, the state's original 1972 child endangerment law said: "A parent, guardian or other person supervising the welfare of a child under 18 years of age commits a misdemeanor of the second degree if he knowingly endangers the welfare of a child by violating a duty of care, protection or support."

Focusing on the "supervising the welfare of a child" part of the original law, the state Supreme Court declared that the only thing that mattered in the Lynn case was "whether the evidence sufficed to prove [Lynn's] supervision of the welfare of a child."

Not whether he was a supervisor.

So for Lynn to beat the rap, like Spanier, he may have to head to federal court, to escape overzealous prosecutors and the state judiciary that protects them, to find a judge familiar with the U.S. Constitution.

In the Spanier case, the state Supreme Court refused to even hear the ex post facto argument that made plenty of sense to the magistrate judge who just decided that Spanier wasn't going to jail today.

Like Spanier, to find justice, Msgr. Lynn may have to get the hell out of Pennsylvania.