Recently, CNN a published a story detailing emails it obtained access to which allegedly were sent between Penn State President Graham Spanier, former Penn State Athletic Director Tim Curley and former Penn State Senior Vice President for Business and Financing Gary Schultz. CNN notes that it does not have the emails in its possession, but that their contents were made available to CNN. Thus, because CNN does not have the emails in its possession, there is always the possibility that the contents made available to CNN do not fully depict the conversations alleged to have occurred between Spanier, Curley, and Schultz in the wake of Mike McQueary telling Joe Paterno about an incident with Jerry Sandusky and a child in a shower on campus.
However, if CNN’s report fully and accurately describes the conversations between Spanier, Curley and Schultz regarding their response to being told about Sandusky’s inappropriate sexual contact with a child in a Penn State shower, then the prosecution’s case against Curley and Schultz may be sealed. Both Curley and Schultz were also charged as a result of the investigation into Jerry Sandusky. Each man is charged with one count of perjury stemming from them denying to the grand jury knowing about the incident originally reported by Mike McQueary. In Pennsylvania, perjury is a third-degree felony that is punishable by 7 years in prison and a $15,000.00 fine. Additionally, they are both charged with one count of failing to report suspected child abuse, which is a summary offense punishable by 90 days in prison and a $200.00 fine.
The alleged emails reported upon by CNN signal trouble for each man’s defense. First, the alleged emails depict that the men had knowledge of the allegations raised by McQueary. If the emails are accurate and a complete depiction of the conversations between the men, then it will likely be hard for their defense to argue against a perjury charge brought for the men asserting in grand jury testimony that they did not know of the allegations brought by McQueary.
Additionally, if the emails reported upon by CNN are accurate, it appears that the men had knowledge of some sort of misconduct on Sandusky’s part. They also make mention of contacting the Department of Child Welfare. This statement indicates the possibility that the men knew of their legal duty to report to allegations raised by McQueary to the Department of Child Welfare. However, nothing in the emails reported upon by CNN specifically indicates that the men knew of the sexual nature of Sandusky’s contact with the child in the Penn State shower. Therefore, the defense could argue that the men did not believe that their legal duty to report the suspected child abuse was triggered. Yet, because reference was made to contacting the Department of Child Welfare, the prosecution will likely rebut that argument by saying that once the story of suspected child abuse was brought to them by Paterno, they had a legal duty to report it to authorities.
The emails obtained by CNN may be the prosecution’s best evidence in its case against Curley and Schultz. However, the prosecution will face legal hurdles in providing the emails as evidence during the two men’s trials. Notably, the defense will object to the emails’ admission into evidence as trial by arguing that the emails constitute “hearsay evidence.” In a court of law, hearsay evidence is inadmissible unless a hearsay exception exists. Arguably, the emails would fall under the business records exception to the hearsay rule. Under the business records exception, any writing or record made as a memorandum of any act or transaction is admissible as proof of that act or transaction. Here, it was arguably the ordinary course of business for Curley, Schultz and Spanier to communicate about how to punish or deal with an athletics department employee that violated the department’s policies and procedures. The emails obtained by CNN were made near the time of the event when the allegations concerning Sandusky were made to the three men. Thus, the prosecution will argue that it can enter the emails into evidence. However, they will likely face stringent objections from the defense in doing so. The defense will likely argue that emails concerning alleged sexual abuse against an athletics department employee fall outside of the ordinary course of business, and as such, constitute hearsay.
Overall, it appears that the emails obtained by CNN will greatly benefit the prosecution’s case against Schultz and Curley. However, again, it is important to remember that what was reported upon likely only represents a snippet of the conversations which allegedly occurred between the men. Thus, there is the possibility that the defense continues to be built in this case. Nonetheless, given the jury’s finding of guilty on 45 of the 48 counts against Sandusky, Schultz and Curley may benefit from taking a plea deal in this case. This is due to the fact that with the outcome of the Sandusky trial, it was made apparent that the jurors of Centre County Pennsylvania take these allegations and charges very seriously and are willing to bring guilty verdicts.