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Attorneys for former PSU administrators argue to dismiss charges related to Sandusky case

Former Penn State vice president Gary Schultz, left, and former athletic director Tim Curley, right, enter a district judge's office for an arraignment in Harrisburg on Nov. 7, 2011. Associated Press

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By Brad Bumsted and Adam Smeltz
Thursday, Aug. 16, 2012, 12:40 p.m.

HARRISBURG — A locker-room assault of a boy by Jerry Sandusky that occurred 13 months earlier than prosecutors originally claimed is at the core of a debate over whether charges against two Penn State administrators should go forward.

During a pretrial hearing on Thursday in Dauphin County Court, President Judge Todd Hoover gave no timetable for ruling on requests for dismissals of the charges against suspended Athletic Director Tim Curley and former Senior Vice President Gary Schultz. Prosecutors accuse them of lying to a grand jury and failing to report child sexual abuse by Sandusky, 69, Penn State's former top defensive football coach. A jury in June convicted Sandusky of 45 charges of molesting young boys.

Bruce Beemer, chief of staff for Attorney General Linda Kelly, argued that there was no basis to dismiss charges.

Curley's attorney Caroline Roberto, who has offices Downtown, said defense lawyers asked for more time to respond to a prosecution filing on Wednesday that suggested a new reason to extend the statute of limitations on the failure-to-report charge.

Prosecutors argue there was an allowable 10-year extension on what the state first believed was a 2002 incident involving Sandusky. Since the charges were filed, it was amended to 2001. Roberto told reporters after the hearing that prosecutors are arguing the extension “continues every day like a conspiracy charge.”

That argument of a “continuing charge” to extend the statute of limitations puts the failure-to-report charges in virtually uncharted legal territory and may jeopardize the case, experts told the Tribune-Review. The flip side is that because there's so little legal precedent, Hoover will have broad discretion, experts said.

Wednesday's filing acknowledged a 10-year statute of limitations “would have expired in February 2011 before the filing of the criminal complaint” based on the 2001 incident. Authorities charged Curley and Schultz in November 2011.

Former acting Attorney General Walter Cohen said the prosecutors' new argument is a stretch. “I would say it is a very unusual argument,” Cohen said.

Beemer declined to comment after the hearing.

Prosecutors are “asking a lot” for the court to agree with them and “uphold the failure-to-report charge,” said Widener Law School Professor Wes Oliver. He does not think the child abuse reporting statute applies in this matter because “Penn State did not have care and custody of the children. I'm surprised this charge has gotten this far.”

The prosecution of failure-to-report charges is “clearly the most difficult charge for the AG to prove,” said John Burkoff, who teaches criminal law at the University of Pittsburgh. “The statute of limitations defense is Curley's — and Schultz's — best hope to beat it.”

Bruce Antkowiak, professor of law at St. Vincent College, said the court could uphold the charge, even though the shower incident that triggered it falls outside the 10-year guidelines.

“It's arguable that this thing could constitute an ongoing crime,” Antkowiak said. He said prosecutors may argue that Curley and Schultz, in not approaching authorities for years, committed a continuing willful offense “that would transcend the date of the underlying incident.”

Brad Bumsted is state Capitol reporter for Trib Total Media. He can be reached at 717-787-1405 and Smeltz is a staff writer for Trib Total Media. He can be reachedat 412-380-5676 or

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