Josh Shapiro Seeks Death Penalty For Graham Spanier

By Ralph Cipriano

for BigTrial.net

State Attorney General Josh Shapiro wants to send former Penn State President Graham Spanier to jail because of a 2017 conviction on a single misdemeanor count, a move that Spanier's lawyers say may amount to a death sentence.

A hearing is scheduled at 10 a.m. Wednesday in Dauphin County Court of Common Pleas in Harrisburg before Judge John Bocabella, the same biased jurist who presided over Spanier's farce of a trial, where Spanier was convicted on a single count of endangering the welfare of a child, a misdemeanor, for allegedly having failed to prevent convicted sex offender Jerry Sandusky from preying on other children. 

"The Commonwealth has asked this Court to immediately send to prison Graham Spanier, a 72 year-old, non-violent, first-time offender with serious, life-threatening health conditions, in the midst of the worst pandemic in more than a century," wrote lawyers Samuel Silver and Bruce Merenstein on Jan. 8th in an 11-page answer to the attorney general's motion to enforce a sentencing order against Spanier.

Spanier had open-heart surgery two years ago to replace his aortic valve; he also suffers from advanced and metastasized prostate cancer. 

"Because [sending Spanier to jail] presents a substantial risk to Dr. Spanier’s health, the Court should deny the Commonwealth’s request and instead require Dr. Spanier to serve his four-month custodial sentence on house arrest with electronic monitoring," Spanier's lawyers wrote.

If Judge Bocabella puts Spanier in jail, it would be the finishing touch on a complete travesty of justice.

For starters, the misdemeanor charge that Spanier was convicted of not only exceeded the statute of limitations, it was also the product of bad case law manufactured by a corrupt D.A. And, as a federal magistrate has previously ruled, Spanier's conviction was unconstitutional as well. 

On top of all that, Spanier's conduct at Penn State was the subject of a contemporaneous and confidential federal investigation that completely exonerated Spanier's handling of the so-called Penn State sex abuse scandal.

The federal investigation on the Penn State campus was conducted for five months in 2012 by former NCIS Special Agent John Snedden, a decorated cold case investigator. 

At the time, Snedden, working as a special agent for the Federal Investigative Services, was asked to determine against the backdrop of scandal whether Spanier, then the Penn State president, deserved to have his high-level national security clearance renewed.

With national security at stake, Snedden wrote a 110-page report that was declassified in 2017, but ignored by the mainstream media. 

In his report, Snedden concluded that a sensational allegation -- that former assistant football coach Mike McQueary had witnessed Sandusky committing an anal rape in the shower against an anonymous 10-year-old boy -- didn't make any sense. Snedden also determined that McQueary, who told several different versions of the shower story, wasn't a credible witness. 

Back in 2001, Snedden said, Mike McQueary was a 26-year-old, 6-foot-5, 240-pound  former college quarterback used to running away from 350-pound defensive linemen. If McQueary actually saw a naked then 57-year-old Sandusky raping a young boy in the shower, Snedden said, instead of fleeing the scene, McQueary would have either physically intervened, or called the cops. 

The anal rape of a 10-year-old boy allegedly witnessed by McQueary was the headline charge in the 2011 grand jury indictment of Jerry Sandusky. The only problem with the rape story that ignited a media firestorm was that it was a complete work of fiction concocted by a corrupt attorney general's office. 

Even Mike McQueary knew it wasn't true. Six days after the grand jury report was leaked by the AG's office, McQueary emailed Deputy Attorney General Jonelle Eshbach, to say that the prosecutors had "twisted" his words about "whatever it was" that he had actually seen or heard in the showers.

Eshbach responded by telling McQueary to keep quiet. "I know that a lot of this stuff is incorrect and it is hard not to respond," Eshbach emailed McQueary. "But you can't."

In his investigation, Snedden concluded that there was no cover-up at Penn State, because there was no crime in the showers to cover up. Instead, Snedden said, what really happened at Penn State was that Spanier was the victim of a "political hit job" orchestrated by former Pennsylvania state Attorney General and Gov. Tom Corbett.

Snedden, now retired, went on Twitter yesterday to let us know that he hasn't changed his opinion. And that the AG's office hasn't cleaned up its act. 

"The Penn State & Spanier cases demonstrate the depth of blatant corruption in a miscarriage of justice emanating from the Corbett-Fina-Freeh vendetta squad, perpetrated by Josh Shapiro," Snedden tweeted.

In his tweet, Snedden referred to former deputy attorney Frank Fina, who in 2019 had his law license suspended for a year and a day after the Disciplinary Board of the state Supreme Court found that Fina had committed "reprehensible" and "inexcusable" conduct during the grand jury investigation of the Penn State scandal.

What did Fina do that was so wrong? First he lied to a judge about his intentions in the grand jury. And then he tampered with Cynthia Baldwin, the defense lawyer for Spanier and two other PSU officials. How did he do that? By threatening Baldwin with indictment, and then flipping her so she became a cooperating witness who testified in secret against her own clients before the grand jury, without notifying those clients. Baldwin was also censured by the disciplinary board for her conduct. 

Snedden was also referring to former FBI Director Louis Freeh, who was commissioned to conduct a supposedly independent civil investigation of the Penn State scandal. Only Freeh's investigation, which concluded that there was a cover up at Penn State, has since been discredited by the discovery of a 72-page diary kept by Kathleen McChesney, a former FBI agent who was one of Freeh's investigators.

In the diary, writen in 2011 and 2012, McChesney, an FBI agent famous for bringing serial killer Ted Bundy to justice, described how Fina and others in the AG's office repeatedly violated state law by leaking grand jury secrets to Freeh's investigators. 

The diary, which also documented evidence of collusion between the two supposedly independent investigations conducted by the AG and Freeh, was the basis for a recent motion for a new trial on behalf of Sandusky, now 75, who is serving 30 to 60 years in prison after he was convicted in 2012 of 45 counts of sex abuse. 

When he was last seen in court, in 2019, Sandusky still maintained his innocence. "I apologize that I'm unable to admit remorse for something I didn't do," he told the judge.  

Sandusky's motion for a new trial was denied on May 13th when the state Superior Court ruled that Sandusky's lawyers did not file their appeal in a timely fashion, but instead "dithered for one-half a year" before bringing newly discovered evidence such as the McChesney diary to the court's attention.

So the cover up in the scandal behind the Penn State scandal continues unabated, thanks to the continuing corrupt course of conduct by the AG's office, and by the actions of judges in the case, who have shown zero interest in pursuing the truth.

Now let's deal with the issue of whether the single misdemeanor charge that Spanier was convicted of was constitutional. 

It wasn't.

On May 1, 2019, Spanier was supposed to report to jail at 9 a.m. to begin serving his sentence.

But the night before, in a two-page order, U.S. Magistrate Judge Caroline Mehalchick ruled in favor of Spanier, saying there was no lawful reason for him to be detained because he was convicted ex post facto, or after the fact. 

In other words, the judge ruled that the offense that Spanier was convicted of, allegedly acting as a supervisor in 2001 to endanger the welfare of a child, wasn't a crime when the offense was alleged to have happened.

That's because the state legislature passed an amendment in 2007 to the existing child endangerment statute, originally written in 1972, to add supervisors to the list of people who were responsible for looking out for the welfare of children. For 40 years in Pennsylvania, that child endangerment law had previously only been applied to people who had direct contact with children, such as parents, teachers and guardians. 

But Shapiro appealed the federal magistrate's ruling, and won, although Spanier's lawyers are still contesting that decision.

"As a preliminary matter, the Commonwealth’s motion [to jail Spanier] is premature, as the
federal court has yet to issue the mandate that would divest that court of jurisdiction," Spanier's lawyers wrote.

"But even if this Court had jurisdiction over the Commonwealth’s motion, the Court should not grant its request to put a man’s health and life in serious danger and to add unnecessarily to the strain of the prison system in contravention of its own health and safety advice."

In their brief to Judge Bocabella, Spanier's lawyers noted that Governor Wolf has asked the state Department of Corrections to grant reprieves to inmates to "reduce the risk of illness and death."

"Dr. Spanier meets the precise criteria of the Reprieve Program," his lawyers wrote, because he has a short sentence and was not convicted of a violent crime. In addition, Spanier is at "heightened risk of contracting COVID-19 and of suffering grave consequences from the disease, including death, due to his age and his serious chronic medical conditions, including heart disease and cancer."

In their brief, Spanier's lawyers recommend that the judge modify Spanier's sentence to have him serve four months on house arrest, with electronic monitoring, rather than grant the AG's request for two  months in jail, followed by two months of house arrest.

The lawyers note that almost 17,400 Pennsylvanians have died of COVID including 13,000 who were age 70 or older.

In the Pennsylvania prisons alone, Spanier's lawyers wrote, almost 14,000 COVID-19 cases and more than 70 deaths had been reported.

According to his lawyers, Spanier has "serious chronic medical conditions" that place him at a higher risk for contracting the virus."

"Indeed, in the past year and a half, Dr. Spanier’s already poor health condition has substantially deteriorated," his lawyers wrote.

"First, Dr. Spanier underwent open-heart surgery on September 20, 2019 to replace his aortic valve. He had previously been diagnosed with aortic insufficiency, which had evolved to a dangerous enlargement of the heart, blood pressure complications, and the potential for imminent cardiac failure, necessitating the surgery."

"He is still recovering from the surgery and a lengthy hospitalization that included five days in intensive care," his lawyers wrote. 

"He takes several heart-related medications (including Procardia, Benicar, and Crestor), undergoes regular echocardiograms, and is under the continuing care of his local cardiologist . . . Moreover, following the aortic-valve replacement, he faces increased danger from infections that could spread to his heart."

"Second, Dr. Spanier has battled prostate cancer for many years and the disease has now advanced and metastasized. As the CDC has explained, “having cancer currently increases your risk of severe illness from COVID-19.”

"Dr. Spanier’s original diagnosis of advanced prostate cancer required radical prostatectomy surgery, which he underwent in 2016," his doctors wrote. "His prostate cancer reoccurred a year later, requiring a course of 35 radiation treatments. The cancer has now returned again and been diagnosed as advanced metastasized cancer."

"Dr. Spanier has gone through a year of chemotherapy (specifically, androgen deprivation therapy), with injections of Lupron at intervals, causing significant side effects, including a weakened immune system," his lawyers wrote. 

"Dr. Spanier is now being monitored through regular lab work for advancement to an additional form of chemotherapy for “castrate-resistant” prostate cancer," his lawyers wrote. "There is no cure for his condition and it can only be managed to address its advancement."

"Dr. Spanier’s serious heart problems, advanced metastasized cancer, and cancertreatments have left him substantially immunocompromised," his lawyers wrote. For those reasons, his lawyers wrote, the judge should place Spanier under house arrest rather than sending him to jail.