Spanier loses appeal.....

Discussion in 'BWI / McAndrew Board' started by lionville, Jun 26, 2018.

  1. JmmyW

    JmmyW Well-Known Member
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    After reading the opinions, here are my notes on the primary differences between the two, focusing on the statute of limitations issues. (FYI - These notes support why Spanier’s defense never really challenged the age of V2 at trial; basically, Spanier didn’t know he had to since the commonwealth had never relied on that to argue SoL was met.)

    ### Long story short:
    Before trial, the commonwealth relied on a specific argument to meet the statute of limitations, arguing there was a comurse of conduct. Spanier was not found guilty of a course of conduct. The trial court judge wrote a post sentence opinion that offered a totally different argument to meet the statute of limitations because he knew the course of conduct argument failed after the not guilty verdict on that charge. This particular argument, while compelling, was never offered by the commonwealth before trial or at trial and therefore Spanier offered no arguments in defense against it. This presents a due process issue that was noted in the dissenting opinion from the Pa Superior Court and was a fundamental reason for the dissent. The majority opinion on the other hand said Spanier was charged on the felony EWOC count (requiring the course of conduct) and had enough of the facts to defend against the lesser included charge of misdemeanor EWOC.


    #### The majority opinion basically said Spanier had enough facts, despite after the fact failings of pretrial commonwealth arguments on SoL:
    http://www.pacourts.us/assets/opinions/Superior/out/Opinion Affirmed 10359725939767150.pdf?cb=1

    > The jury expressly rejected that [course of conduct] theory, thus defeating the Commonwealth's sole statute of limitations argument.
    > ...
    > Appellant argues further that the Commonwealth cannot avoid the limitations bar through the trial court's after-the-fact reliance on § 5552(c)(3), which the Commonwealth never raised nor addressed at trial.
    > ...
    > More importantly, the prosecution for misdemeanor EWOC was not dependent upon proof of any facts outside those already alleged in the complaint. Thus, unlike Bethlehem, **notice requirements under due process were not violated here.**
    > ...
    > Simply put, this case does not involve “tolling” wherein the Commonwealth would have had an obligation to apprise the Appellant of additional facts to defend against in response to his statute of limitations defense.
    > ...
    > The complaint and the attached grand jury presentment apprised Appellant of the facts relevant to the applicable limitations period in order to defend against the lesser-included offense of EWOC as a misdemeanor.



    #### The minority, dissenting opinion, rejected the majority's arguments that due process was met:
    http://www.pacourts.us/assets/opinions/Superior/out/Dissenting Opinion 10359725939767138.pdf?cb=1

    > The trial court noted that the child victim in the 2001 incident was ten to twelve years old; thus, the statute would run in approximately 2039. Id. at 10. Appellant asserts that reliance on this section of the statute was procedurally improper where this provision was never raised before or at trial.
    > ...
    > I reject the trial court's reliance upon this section. Moreover, I find the Majority's attempt to rationalize this belated reliance unpersuasive. As I will explain, infra, the Commonwealth's failure to invoke the exception **violated the due process requirements of notice**.
    > ...
    > ...
    > As this line of cases makes clear, the law remains well settled. Essentially, provided the defendant, at some reasonable time prior to trial is apprised that the Commonwealth will seek to toll the statute, the due process requirements of notice are met. ... The notice itself, and accordingly the opportunity to defend, is the operative and most important aspect: this is the due process concern that must be satisfied.
    > ...
    > The Majority contends that, pursuant to Morrow and Commonwealth v. Houck, ..., the Appellant was constructively aware of the applicable statutory provision, as there was testimony that the victim was ten to twelve years old. This argument falls flat in the face of the Commonwealth's continued reliance upon the course of conduct exception, which I have rejected supra.
    > ...
    > Here, similarly, Appellant prepared his defense in response to the Commonwealth's express reliance upon the course of conduct exception. ... Appellant was unsuccessful in this challenge before the trial court, and the matter proceeded to trial. Unlike the situation in Morrow, the Commonwealth did not notify Appellant of its intention to toll the statute here, based upon its assertion that the course of conduct exception applied. ... In fact, it did not inform Appellant of its intention at all [I note that, in its brief, the Commonwealth declines even to address its failure to properly notify Appellant at all.] **Absent proper pretrial notice, the requirements of due process were not met.**



    #### Summarizing the PA Superior Court Opinions regarding Statute of Limitations Issues
    The majority argues that due process rights were not violated. (The basis for this is a little hard to follow.) The minority, dissenting opinion argues that due process rights were indeed violated. (The basis for this is much easier to follow.)
     
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  2. JmmyW

    JmmyW Well-Known Member
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    I think they'd tell you they did put on a defense, even though they didn't call any defense witnesses. They simply made their defense by cross-examining the prosecution's witnesses.

    In fact, Silver said as much in his closing: "These were her [prosecutor Ditka] witnesses. I didn't call them and put them on the stand. That's why I don't need to call any witnesses. Her witnesses made the defense case."
     
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  3. RussianEagle

    RussianEagle Well-Known Member
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    Say what you want about John Ziegler, but Gary does talk with him regularly and appears to accept his theory on what happened. I am a member of a private Facebook group that Gary and JZ are a part of. Schultz has "liked" almost every article/podcast Ziegler has posted proclaiming Sandusky's innocence. Ziegler also has talked with Spanier. While I can not independently confirm that Spanier believes Jerry is innocent, I see no reason why Ziegler would lie about this.

    I have personally corresponded with Gary and he has told me he looks forward to being able to tell his version of the story but can't at this point. I am assuming he is waiting until he completes house arrest/probation.
     
    83 RussianEagle, Jun 27, 2018
    Last edited: Jun 27, 2018
  4. Connorpozlee

    Connorpozlee Well-Known Member
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    I appreciate that Jimmy.
    I would say in response that his lawyer was clearly wrong and took a lazy and poorly calculated risk.
     
  5. GTACSA

    GTACSA Well-Known Member
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    I don't think anyone can read those opinions (or have followed along throughout the trial) and NOT walk away feeling like the Prosecution - and the Judge - all need to be soaked in Clorox.

    Not really. After reading the opinions it appears that the defense may have missed a very subtle nuance on the issue of Statute of Limitations.

    The misdemeanor on which Spanier was convicted was not formally charged, but was a lesser included offense under the section for which he was charged. The defense may not have considered in their trial strategy the possibility for this result and missed the SL that would apply in the event he was convicted of the misdemeanor. That SL clearly runs when the victim turns 50. There are no due process considerations, the SL that would control was clear to all.

    In fact I doubt if the Commonwealth even considered this argument, which shows you how subtle it was.

    Now it may be that the result might change in subsequent appeals, but at this point the ruling is quite logical; no Clorox needed.
     
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  6. PSU2UNC

    PSU2UNC Well-Known Member
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    I think there's still issues there, because if the jury was not informed of that subtlety that you mention, then that's also grounds for a new trial.

    Also, their argument hinges on knowing the age of the boy in the 2001 incident. Either the boy is AM (and their assumptions about his age are wrong) OR they have no idea how old the boy was and cannot possibly base their opinion on a theoretical age.
     
  7. Zenophile

    Zenophile Well-Known Member
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    "Known only to God."
     
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  8. AvgUser

    AvgUser Well-Known Member
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    However, none of the conditions for which one could be convicted of EWOC applied to Spanier. One doesn't even have to get to a SoL discussion. The very basic premise of the charge did not apply.

    I don't know why Spanier's legal team and/or this review panel cannot understand that. It not subtle. Its not a nuance. It is not a gray area. It is black and white.
     
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  9. mcgunns

    mcgunns Well-Known Member
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    It should be a crime to do the "humane" thing instead of having your head of police look into a report of possible child abuse.
     
  10. GTACSA

    GTACSA Well-Known Member
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    I think there's still issues there, because if the jury was not informed of that subtlety that you mention, then that's also grounds for a new trial.

    The function of a jury is to determine what the facts are, they have no role in the application of the law.
     
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  11. GTACSA

    GTACSA Well-Known Member
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    While you have every right to believe that, there is sufficient evidence to support the conviction.
     
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  12. AvgUser

    AvgUser Well-Known Member
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    Can you help me understand which EWOC condition applies to Spanier (or C&S for that matter)? There is absolutely zero evidence at all to support any of the conditions. Zero
     
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  13. AvgUser

    AvgUser Well-Known Member
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    So, Spanier should do jail time because you "think" something should be a crime? That's brilliant.

    The fact is, the situation was looked in to and evaluated. A decision was made based upon the information known at that time. The situation was reported to the Second Mile. The top cop of the PSU force (Harmon) was more or less made aware of the situation as well.

    Since you're speaking about speaking about people who should be in jail for things you think should be a crime, want to guess where I think unintelligent people who are intentionally ignorant belong?
     
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  14. mcgunns

    mcgunns Well-Known Member
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    Yes. I think he deserves jail. I don't think there's an applicable law to convict him of though so I would vote not guilty if I was on the jury. It's not that complicated.
    Even a cursory attempt to find the kid would make me think they were acting in good faith. Unfortunately, this did not happen because they were not acting in good faith. Did they even bother to question Sandusky about it?
     
  15. AvgUser

    AvgUser Well-Known Member
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    They did act in good faith. What part of informing TSM (and Harmon, essentially) isn't clear to you?

    Besides Spanier, who else do you think deserves to be in jail as it relates to Sandusky?
     
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  16. JmmyW

    JmmyW Well-Known Member
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    I agree with the above. The jury would not address issues related to SoL. It’s the judge’s role to de identified matters of law.

    It seems you didn’t read the dissenting opinion. It wasn’t clear at all to Judge Ransom.

    But then you say it was it was so subtle the commonwealth probably didn’t consider it. If it was so subtle that the commonwealth overlooked it, how would it be clear to all? Further, in 4+ years of motions back and forth arguing SoL issues, why did Commonwealth continue sticking with the course of conduct exception rather than the one they adopted for this appeal, which they had to borrow from the trial court judge in his post-conviction opinion?
     
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  17. pandaczar12

    pandaczar12 Well-Known Member
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    That turned out to NOT be child abuse. So you want Spanier to go to jail for coming to the appropriate conclusion, the same conclusion that everyone else involved with came to? You must want to execute folks at TSM, who ultimately failed to act on Penn State's report.

    I think people who want to put people in jail based on how they 'feel', deserve to be in jail

    Who are you talking about, those involved the night of the alleged incident (MM, JM, Dranov)? or those at TSM who were properly trained and had responsibility for JS and the teen?
     
  18. mcgunns

    mcgunns Well-Known Member
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    The head of the police and his boss are the two I hold responsible. Everyone else could reasonably believe it was being looked into.
     
  19. GTACSA

    GTACSA Well-Known Member
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    I read the dissenting opinion and IMO the majority opinion is stronger.

    It would be clear to all if they considered what would happen if the lesser included offense was the basis of the conviction. I don't think either side looked at that possibility.

    The reason the Commonwealth stuck with the course of conduct exception was because they were focused on the charged offense and never considered a conviction on the lesser included offense. Or I guess you could give them credit and say they did understand the SL as applied to the misdemeanor charge and just let it play out. They would have been under no obligation to "educate" the defense of this possibility.

    If you want a definitive answer you'll have to ask the AG's office.
     
  20. GTACSA

    GTACSA Well-Known Member
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    Again you are entitled to your opinion, but the Majority Opinion lays out the answer to your question.
     
  21. marshall23

    marshall23 Well-Known Member
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    So Raykovitz could reasonably think it was being looked into? LOL Surely you jest.
     
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  22. wensilver

    wensilver Well-Known Member
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    TROLL ALERT!

    Oh FFS. Just stop.
    This is just such a bullshit line - I can't believe anyone is still using this years later.

    The FACT is that Second Mile CEO Jack Raykovitz knew damned well once Tim Curley sat with him that Jerry was flagrantly accessing a Second Mile minor outside of his prescribed role with the program.

    That is a HUGE RED FLAG for anyone in a youth serving organization. Jack failed to speak with this Second Mile teen as to why the hell he was with Jerry in the first place. It doesn't matter what Tim told him, the FACT REMAINS it's flagrant out-of-program contact. Jack failed to speak with this teen's parents about any permission forms. Jack failed to sit Jerry down and implement a written safety plan (as per state mandate).

    Jerry could have been sitting on the floor with this teen, playing with a box of kittens, and it was still out-of-program contact. That's on Jack and that's on Second Mile.

    Please step up your game here or we're all going to think that you've been benefitting from Second Mile leadership's ....uh...."services".
     
  23. AvgUser

    AvgUser Well-Known Member
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    I have my opinion, of course. I was asking you to tell me specifically what EWOC condition applied to Spanier. You tell me there is a lot of evidence pointing to it. Cite me just one. I t does not exist.

    You are sidestepping from answering the direct question to you. Don't be shy to admit that you have no die and the statute certainly is not applicable to Spanier, Curley or Schultz. .
     
  24. BobPSU92

    BobPSU92 Well-Known Member
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    You make many compelling points. Maybe, just maybe, Joe did nothing wrong. Maybe, just maybe, this wasn't Joe's fault. Maybe, just maybe, this wasn't a football problem.

    Nah. I hate me for even considering such nonsense.
     
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  25. swordsman_l

    swordsman_l Well-Known Member
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    this is an interesting statement. What do you mean by innocent?

    I've followed this case fairly closely, and I think its obvious that Sandusky is a pedophile, in the sense that he enjoys (gains gratification from) seeing teen/pre-teen boys naked.

    Having said that, I'm not certain that he ever had any direct sexual contact with these boys.

    And I dont think he received a fair trial. Four real head-scratchers.
    1) Complex case brought to trial within 7 months of charges.
    2) When McQ senior is queried about stating something, and he says "i never said that", even when a trasncript is presented, the judge says move on. What????
    3) When taped evidence is presented that the investigators were lying, no one says a thing. What???
    4) He's found guilty in the "janitor case" based on second hand hearsay. What??? how on earth does this happen??

    I hope Spanier is somehow able to move this out of the horribly corrupt/inept/incompetent (choose your adjective) PA courts.
     
  26. GTACSA

    GTACSA Well-Known Member
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    You can read Pages 19-27 of the opinion if you really want an answer to your question: Can you help me understand which EWOC condition applies to Spanier (or C&S for that matter)? There is absolutely zero evidence at all to support any of the conditions. Zero

    I can't help you understand the plain written word of the opinion; beyond my pay grade. Likewise I can't help you understand that 1 plus 1 equals 2 if you would have a problem understanding that.
     
  27. YYZ86

    YYZ86 Well-Known Member
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    Whenever someone on this subject states that they should make an attempt to find the kid, I ask them to contact experts in the field to see if that is what they should do. Every single person I ask this of never does so. What if what you are saying is not what people in their situation should do? Would that make you rethink? Please call and find out.
     
  28. Osprey Lion

    Osprey Lion Well-Known Member
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    And yet it is so true. You and the other cult members are the only ones foolish enough
    to still be whining about this after so many years. Get a life.
     
  29. AvgUser

    AvgUser Well-Known Member
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    You don't have to help me think nor do you have to help me add one plus one. But, it is clear from your avoidance of answering the question I asked that you can neither think objectively nor defend you position, I will help you. Below are the conditions under which EWOC offenses may apply

    Endangering welfare of children.

    (a) Offense defined.--

    (1) A parent, guardian or other person supervising the welfare of a child under 18 years of age, or a person that employs or supervises such a person, commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.
    ==>> Spanier was not supervising the child nor did he employ Jerry Sandusky. Hence, does not apply

    (2) A person commits an offense if the person, in an official capacity, prevents or interferes with the making of a report of suspected child abuse under 23 Pa.C.S. Ch. 63 (relating to child protective services).
    ==>> Spanier did not prevent or interfere with any reporting. In fact, the situation was properly reported to TSM.

    (3) As used in this subsection, the term "person supervising the welfare of a child" means a person other than a parent or guardian that provides care, education, training or control of a child
    ==>> Spanirr did not provide nor was he even responsible for the care, welfare, training or education of any TSM child.

    Hence, if you're keeping score, that is 0 for 3. In baseball, that is well below the Mendoza line. Only in the PA [lack of] Justice system can this be equal to something greater than zero.
     
  30. RussianEagle

    RussianEagle Well-Known Member
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    If your theory is correct, why do you think Sandusky hasn’t confessed to having a problem? The sentence he was given was mostly for the counts of anal rape (he was found guilty of sodomizing victim 9), not for watching boys get naked or even touching them inappropriately. Therefore, he will likely spend his entire life in solitary confinement.

    On the other hand, there are many child sex offenders who had actual sex with children, then confess and plea bargain, and often serve very light sentences (maybe 1-2 years).
     
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  31. RussianEagle

    RussianEagle Well-Known Member
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    Curley did question Sandusky about it and Sandusky offered to have the kid speak to Curley, but ultimately Curley decided that was better handled licensed child psychiatrist (Jack raykowitz) rather than an athletic director.
     
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  32. swordsman_l

    swordsman_l Well-Known Member
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    This statement is simply wrong.
    The felony anal rape was one of the only charges for which he was found not guilty.
     
  33. RussianEagle

    RussianEagle Well-Known Member
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    He was acquitted of the anal rape charge against the McQueary “victim” , but found guilty of sodomizing the man who claimed Sandusky locked him in the basement.
     
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  34. indynittany

    indynittany Well-Known Member
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    You're completely wrong to think they should have sought out the boy. That's the last thing they should have done.
     
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  35. indynittany

    indynittany Well-Known Member
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    I believe, had Spanier thrown JVP under the bus, he'd still be president of PSU to this day.
     
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  36. Bubbas Breakaway

    Bubbas Breakaway Active Member
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    This is such a dumb statement. At least you admitted & warned us you were trolling.

    Organizations are NOT RESPONSIBLE for out-of-program acts, that is precisely why they are called out-of-program.

    You always find a way to make just the exact argument which is the opposite of what's real. It's no wonder that like 5 of the last 6 PA AGs think you are a loon. Exceptibg of course the one that's in prison.
     
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  37. demlion

    demlion Well-Known Member
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    So, when the Exec director becomes aware that the FOUNDER of the organization is flagrantly violating the rules regarding out of program contact After the FOUNDER has already been told "just wear swim trunks," when showering alone during naked out of program contact with the vulnerable troubled kids the org serves, the organization has successfully shielded itself from any civil liability for the FOUNDER's conduct, even if he does not wear swim trunks. Got it.
     
  38. marshall23

    marshall23 Well-Known Member
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    Of course, even when one of the board members, hearing that the organization's founder has been banned from bringing children to PSU..... provides another venue for said individual to work out AND shower. You are an idiot.
     
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  39. Lyons212

    Lyons212 Well-Known Member
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    No way. Anybody who had any connection to Sandusky regarding how to handle the incident was gone. No two ways about it. If he threw JoePa under the bus, would he have been prosecuted? Maybe not.
     
  40. pandaczar12

    pandaczar12 Well-Known Member
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    I guess you don't see the irony in your statement.
     

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