A lawyer for Graham Spanier argued to a Pennsylvania appeals court Wednesday that too much time had passed for the former Penn State president to be charged with endangering the welfare of children over his handling of a complaint about Jerry Sandusky.
A three-judge Superior Court panel heard oral argument about whether to vacate or uphold the misdemeanor guilty verdict issued last year against the 69-year-old Spanier.
He was found criminally liable for his response to a 2001 report that former assistant football coach Sandusky had been seen sexually abusing a boy in a team shower. Spanier, who did not testify, has said the attack was characterized to him at the time as horseplay.
He is arguing a two-year statute of limitations applies and had expired by the time he was charged in 2012. The argument in court on Wednesday focused in part on a post-trial ruling by the judge that cited an exception to the two-year limit in cases where someone under 18 has been victimized by a sexual offense.
Under those circumstances, which expressly include the crime of child endangerment, charges may be brought until the victim turns 50.
Jurors in the Spanier case acquitted him of engaging in a course of conduct — a decision that Spanier's lawyer argued should also affect how the statute of limitations applies. Jurors ruled that Spanier's crime consisted of his acts in 2001, his lawyer argued, so the crime did not continue in subsequent years by a lack of action to protect children against Sandusky.
Spanier attorney Bruce Merenstein said the provision cited by Judge John Boccabella's post-trial opinion defending the verdict had never before been raised, preventing the defense team from addressing it in a meaningful way.
"The time to do it was before trial," Merenstein told a three-judge panel. "You simply cannot raise that exception after-the-fact."
Spanier was acquitted of conspiracy and a second count of child endangerment. He was sentenced to two months in jail and two months of house arrest but remains free on bail pending appeal.
The university said Wednesday Spanier remains a tenured faculty member on administrative leave. Under a separation agreement, he was paid $600,000 annually for five years, payments that ended three months ago. His current salary, like that of most other Penn State faculty members, is not disclosed by the school.
At sentencing, Spanier told the judge he regretted he "did not intervene more forcefully." Two of the top administrators under Spanier when he led Penn State, then-athletic director Tim Curley and then-vice president Gary Schultz, pleaded guilty to child endangerment and testified against Spanier.
Boccabella told all three defendants last year that they "ignored the opportunity to put an end to his crimes when they had a chance to do so" and that he was "appalled that the common sense to make a phone call did not occur," a transgression Boccabella said "sort of robs my faith of who we are as adults and where we are going."
In a February 2001 email, Spanier told Curley and Schultz he approved a proposed response to the 2001 complaint that involved telling Sandusky he should seek professional help and could not to bring children into university facilities. The administrators did not plan to inform police or child-welfare authorities.
"The only downside for us is if the message isn't heard and acted upon and then we become vulnerable for not having reported it," Spanier wrote. "The approach you outline is humane and a reasonable way to proceed."
Boccabella's post-trial opinion noted that at least four young boys were sexually abused by Sandusky after 2001.
Sandusky was convicted in 2012 of 45 counts of child sexual abuse, including for the incident in the shower that graduate assistant Mike McQueary reported to Spanier's lieutenants. He is pursuing appeals of his own while serving 30 to 60 years.
The scandal has cost the university more than a quarter-billion dollars, including payouts to dozens of people who say they were abused by Sandusky as boys.