Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

PENN STATE OFFICIALS ARE FIRED…WHAT IS THEIR CRIMINAL LIABILITY?

Attorney Sam’s Take On The Criminal Liability Of The Penn State Debacle

Students are protesting it. News stations are broadcasting debates about it. And, yes, the Boston Criminal Lawyer Blog is discussing it.

It has come light that Penn State had a problem with sexual assault over the years. The alleged perpetrator was assistant football coach Jerry Sandusky (hereinafter, the “Defendant”).

The Defendant has been arrested, but allegations of wrongdoing do not end there in this case.

During the course of the state investigation into the matter, allegations have emerged that law enforcement, which began an investigation into the allegations, closed that investigation without doing anything about alleged felonies. Further, it has been discovered that the President Graham Spanier and famed head Coach Joe Paterno were aware of the Defendant’s activities but also did nothing about it.

Result?

As the spotlight has been pointed into a dark hole in the university’s protective coating, law enforcement and college officials have not been forced into action. Now, years after the fact, Spanier and Paterno have been fired. Most recently, as last week came to a close, Mike McQueary, was placed on administrative leave for the same reason. Kinda sorta. He had told someone…just did not go far enough.

But the result at the time?

The victims, and other victims, now known and unknown, stayed victimized and, it would seem, the problem persisted. The allegedly guilty remained unaccused and unpunished.

Of course, this is not the first time we have heard of such things. Over the past several years, we have been inundated with reports and court actions in connection with similar activities by the clergy while those in charge turned their heads in all kinds of angles in order to ignore the criminal and…one might guess…sinful activities.

And so now, years later, the news is out and Messrs.’. Spanier, McQueary and Paterno ( hereinafter referred to as the “Fired”) are released by the university in disgrace.

However, it is worth noting that they are not the alleged perpetrators parties. In other words, there is no allegation that they themselves molested any students or, actively encouraged any such actions.

Or is that really true?

Well, such questions can keep us talking for years. For now, though, let’s focus on the legal issues. The criminal ones. Could the Fired be arrested for the sexual allegations concerning yesteryear?

First, of course, we have to put aside any applicable statue of limitation issues. As you know, for all crimes except murder, the government must bring charges within a certain time in order for the matter not to be dismissed as being brought too late. Of course, with sex cases involving minors, the rules change a bit…but let’s deal with the issues aside from the mathematics.

I am from the Commonwealth of Massachusetts. It is a state wherein the Attorney General pushes for mandatory police involvement in cases wherein one third grader says “I don’t like you, you stink” to a classmate (Massachusetts Bullying, you know). Pennsylvania’s Attorney General is the one prosecuting this matter. So, excuse me if I rush to the judgment that, if political justice plays out there like it does here, such prosecutions of the Fired may well be a-coming. In fact, while the Attorney General has indicated who is not a target of the investigation…she has remained silent as to the Fired.

We must remember, however, that we have to examine this potential in a light most favorable to the prosecutors. After all, they sure will. This is a big publicity item and so it is worth political prosecutors to be a bit creative to come up with an arguable theory.

“Could criminal charges for sexual assault be brought against the Fired?”

Well, there seems to be no evidence of the Fired having in any way been involved in the assaults. Directly.

However, it would certainly seem that the school owed a duty, particularly since they knew the problem existed, to keep the children safe. Keep in mind that we are not talking about actual college students here. These were younger juveniles. And so, crimes which reflect a violation of keeping the kids safe, such as some kind of child endangerment could certainly be possible.

Moreover, there is certainly a theory that the Fired aided and abetted the assault as they helped provide a safe haven for the perpetrator. Additionally, we have often discussed the theory of criminal conspiracies that our government likes to use. According to such a theory, any person in the conspiracy who does anything to aid the conspiracy (no matter how slight an action) can be found guilty of anything the co-conspirators do.

“But, Sam, is there any evidence here that there was a conspiracy which included the Fired?”

Actually, yes…at least, potentially. Especially if the government alleges that the Fired actually knew that this was going on and looked the other way. Then, there may be a conspiracy to keep the Defendant at large, allowing his alleged crimes. Perhaps even helping him cover up the crimes. Such are the things that allegations of which criminal enterprises are made.

Of course, there usually has to be an agreement in order for there to be a conspiracy. But, then again, remember, This may be a political prosecution. If so, creativity, or what passes for it, is likely to be engaged.

Further, were such a case brought in federal court, there is a theory called “Willful blindness”. This, quite literally involves the turning of one’s head even though it seems clear enough that criminal acts are afoot.

“But even assuming that there is enough here for a civil lawsuit…could there really be enough here for criminal charges?”

Well, as you know, I have practiced in New York and Massachusetts. Occasionally a case or two elsewhere. However, I have never handled any cases in Pennsylvania. So I have no expertise in that particular state. On the other hand, there are great similarities in the actual elements of criminal charges in this country. So I can hazard an educated guess.

The educated guess is “Yes“. However, I will go even further.

One thing I have learned throughout my many years imbedded in the criminal justice system. That is that prosecutors have wide discretion as to which cases they will bring to court. In fact, one of my constant complaints in this blog is that such decisions are often made for political reasons. After all, most District Attorney and Attorney General positions are held by politicians.

Perhaps some day I will share with you how I witnessed this first hand during my days as a prosecutor. Until then, though, I need only point to things like the anti-bullying fiasco to make the point…not that other examples do not exist.

So, other than simple interest, what does this mean to you?

It means that not being the actual physical perpetrator of a crime does not mean that you may not lose your livelihood and even your freedom when such crimes come to light. You must be careful with what you know or suspect.

Remember, if you want to avoid criminal prosecution, what you do know is not as important as what law enforcement thinks you know. This truth is played out every day. You are no longer simply responsible for what you, yourself, do. Knowing a danger in many circumstances, and remaining silent, has long been actionable in civil court.

Now it is in criminal court as well. If you have any doubt, observe the news that the legislature now seeks to make witnessing a crime and remaining silent about it a crime in itself
Which brings us to what I had indicated in my last blog would be coming next…

See you tomorrow.

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