Tuesday, January 7, 2014

Superior Court's Lynn Decision Complicates PSU Prosecutions

Matthew T. Mangino
The Pennsylvania Law Weekly
January 7, 2014

A decision by the Pennsylvania Superior Court on Dec. 26 could have an impact on the prosecution of three former Penn State University officials facing charges stemming from failing to properly deal with reports of child sexual abuse by Jerry Sandusky.

The decision in Commonwealth v. Lynn, 2171 EDA 2012, reversed the conviction of Monsignor William Lynn, a former official of the Catholic Archdiocese of Philadelphia implicated in the sex-abuse scandal plaguing the church in Philadelphia.

According to a 2011 report prepared for Penn State by former FBI Director Louis Freeh, university officials were aware of sexual abuse allegations against Sandusky for at least 14 years and still gave him access to the school's campus.

Former Penn State President Graham Spanier, former Vice President Gary Schultz and former athletic director Timothy Curley are accused of concealing information about suspected child abuse involving Sandusky, including on-campus incidents from 1998 and 2001 that were reported and discussed in great detail by the three men, according to a press release from the Pennsylvania Attorney General's Office.

The timeline suggested in the release may be crucial to Spanier, Schultz and Curley's defense in the aftermath of the Superior Court decision in Lynn.

Schultz and Curley are each charged with two counts of endangering the welfare of children and two counts of criminal conspiracy, third-degree felonies. Schultz and Curley are also charged with one count each of obstructing the administration of law or other governmental function and one count of criminal conspiracy, both second-degree misdemeanors. The Freeh Report found that Schultz expressed concern that allegations against Sandusky would open a "Pandora's box."

Spanier is charged with one count of perjury, two counts of endangering the welfare of children and two counts of criminal conspiracy, all third-degree felonies. Additionally, Spanier is charged with one count of obstructing the administration of law and one count of criminal conspiracy, both second-degree misdemeanors, along with one count of failure to report suspected child abuse, a summary offense.

Lynn's conviction, for which he had been serving three to six years in prison, was based on his supervision of a priest, Edward Avery. Prosecutors argued that Lynn, who was the secretary for clergy in Philadelphia between 1992 and 2004, knew Avery was a sex offender but continued to assign him and other priests, also known to be abusers, to new parishes, according to media reports.

Lynn's attorney Thomas Bergstrom argued that the endangering the welfare of children (EWOC) statute, 18 P.S. 4304, applied "only to parents and caregivers, not supervisors." Therefore, the statute did not apply to Lynn in his supervisory capacity.

The thrust of Lynn's appeal continued to focus on whether or not his conduct fell under the application of the EWOC.

The current EWOC statute reads as follows: "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."

However, prior to Jan. 29, 2007, the EWOC statute, 18 P.S. 4304(a)(1), read: "A parent, guardian or other person supervising the welfare of a child under 18 years of age commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support."

Lynn's attorney argued before the Superior Court that the pre-2007 version of EWOC as defined was too narrow to support Lynn's conviction. The statute confines its coverage to parents, guardians and other people "supervising the welfare of a child." He also argued that the newly worded statute did not apply because of the timing of the conduct.

"Given the pre-2007 timeframe of [Lynn's] conduct, the amended statute is not applicable in this case," Superior Court President Judge John T. Bender wrote.

For Spanier, Schultz and Curley, the most serious charges they face are the EWOC and conspiracy charges, all of which are felonies. Spanier is also charged with perjury, a felony. Attempting to prove the three men were accomplices of Sandusky may also be a nonstarter for the prosecution.

In Lynn, the Superior Court also addressed whether Lynn was an accomplice in the crime. There was no evidence that Lynn knew the victim of sexual abuse or that he conspired with Avery's plans to abuse the boy, the Superior Court concluded.

"In sum, the evidence was insufficient to demonstrate that [Lynn] acted with the 'intent of promoting or facilitating' a EWOC offense" committed by Avery, Bender wrote. Prosecutors would face the same hurdles in the Penn State prosecutions.

The Attorney General's Office has suggested that Penn State officials put the reputation of the university ahead of the welfare of the young people abused by Sandusky, in the same way that the Philadelphia District Attorney's Office argued that Lynn put the reputation of the Catholic Church or the archdiocese ahead of the victims of abuse.

The Superior Court addressed that very issue in the Lynn opinion. "The question of whether appellant's priorities were more with the reputation of the church, or, instead, with the victims of sexual abuse at the hands of archdiocese priests is not at issue in this case."

The relevant question was whether there was sufficient evidence to demonstrate Lynn intended to promote or facilitate a subordinate priest's endangerment of a child while under the care of that priest.

"Having determined that the evidence was not sufficient to support [Lynn's] conviction for EWOC either as a principal or as an accomplice, we are compelled to reverse appellant's judgment of sentence," Bender said.

The Superior Court's decision appears to match a key argument put forward by attorneys representing the defendants in the Penn State case. "The court was very clear and very adamant that the statute didn't apply to [Lynn] and he was wrongfully, wrongfully convicted," Bergstrom told The Philadelphia Inquirer.

According to Bergstrom, Lynn never should have been prosecuted for allegedly putting children in harm's way. Bergstrom told the Inquirer: "The Superior Court followed years of their own precedent and found, as we've argued, that the statute didn't apply to him, at all. It's a crime he cannot commit and didn't commit."

Pittsburgh attorney Caroline Roberto represents Curley. She told the Pittsburgh Tribune-Review, "The charges are an example of prosecutorial overreach, and we will continue to vigorously fight the charges."

Sandusky retired in 1999, therefore the pre-2007 EWOC statute should apply. When the law was changed, Curley, Schultz and Spanier were no longer Sandusky's supervisors. The law in effect when Sandusky was in the employ of Penn State would not result in Sandusky's supervisors being held criminally responsible.

We may not have heard the final word on this matter. Philadelphia District Attorney Seth Williams said he will more than likely appeal the Superior Court's decision. The attorney general will undoubtedly be watching Lynn very closely.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book, "The Executioner's Toll, 2010," is due out this summer. Reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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