Friday, November 11, 2011

The Cautionary Instruction: PSU Administrators Circle the Wagons

The Pittsburgh Post-Gazette/Ipso Facto
November 11, 2011

Two Penn State University officials arrested this week, Athletic Director Tim Curley and Senior Vice President for Finance and Business Gary Schultz, are certainly not accused of direct involvement in the sexual abuse of children -- allegedly perpetrated by former assistant football coach Jerry Sandusky -- but their alleged conduct, if true, is appalling, outrageous and an affront to all professionals associated with institutions of higher education.
Both men are charged with violating Pennsylvania’s mandated reporter law and perjury for allegedly lying to a state grand jury.
The mandated reporter law in Pennsylvania provides, "a person who, in the course of employment, occupation or practice of a profession, comes into contact with children shall report or cause a report to be made in accordance with (the act) when the person has reasonable cause to suspect…that a child under the care, supervision, guidance or training of that person or of an agency, institution, organization or other entity with which that person is affiliated is a victim of child abuse.” 
Attorney General Linda L. Kelly was asked at a recent press conference about the suggestion that the statute requiring reporting incidents of child abuse did not apply to Curley and Schultz. “I think that we are confident that that statute will cover the kind of activity that occurred late that night … the administrators of the university, who are representatives of the head of the university, that have that information in their possession have an obligation to report that."
With regard to perjury, Pennsylvania law provides, “a person is guilty of perjury, a felony of the third degree, if in any official proceeding he makes a false statement under oath or equivalent … when the statement is material and he does not believe it to be true.”
Schultz's attorney Thomas J. Farrell accused the Attorney General of setting a ‘perjury trap.’ "You bring someone into a grand jury to investigate something that can’t be prosecuted, something that isn’t a crime, and then you take that persons’ inconsistencies or inaccuracies, or failure to remember what happened nine years ago," said Farrell. "Then you manufacture a charge out of it. That’s what the Attorney General has done to these men."
A perjury trap materializes when a prosecutor calls a witness before the grand jury with the intention of securing a perjury indictment, rather than indicting the witness for a previously committed crime.
A perjury trap defense asks the court to take the unlikely step of looking favorably upon someone who lied under oath to a grand jury and is now blaming the prosecutor for ‘trapping’ the defendant into committing perjury.
Some legal commentators suggest that the perjury trap is a ‘superfluous’ defense. The perjury statute requires that the untruthful statement be material. If the statement is material it’s perjury; if the statement is not material it’s not perjury. The trap is inconsequential.

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