HARRISBURG -- Defense attorneys for two Penn State administrators told a judge Thursday morning that their clients didn't lie but instead offered their opinions when they told a grand jury last year that they didn't believe Jerry Sandusky's behavior with a boy in a locker room shower was sexual or a crime.
"That's a conclusion, an opinion," said Caroline Roberto, who represents former athletic director Tim Curley.
"I challenge the prosecution to find any case where perjury is based on a characterization," added Tom Farrell, who represents Gary Schultz, retired vice president of business and finance at Penn State. "It's his opinion."
But Deputy Attorney General Bruce Beemer argued the defense contention is not a matter to be decided in pretrial motions.
"That is a question for the jury," Mr. Beemer said. "What Ms. Roberto just said underscored what trials are for. We have reason to believe he lied."
The parties appeared Thursday before Dauphin County Common Pleas Judge Todd A. Hoover to argue pretrial motions in the case that charges both Mr. Schultz and Mr. Curley with perjury and failure to report suspected child abuse. The hearing was expected to focus on motions by the defense to have each count thrown out.
However, on Wednesday, prosecutors filed a motion asserting a new theory on the statute of limitations related to the count of failure to report, and the judge has given the defense 10 days to file a response.
On the perjury count, Judge Hoover heard arguments as to why attorneys for the two believe it can't stand.
Their position is based on two main points -- there is no corroboration for statements made by former assistant football coach Mike McQueary, who told the grand jury he witnessed Mr. Sandusky in the shower with the boy, and that the charges never should have been filed because the statements made before the grand jury were based on opinion and not facts.
The defense said that because of the death of former Penn State football coach Joe Paterno, the prosecution no longer has any evidence to support the allegations by Mr. McQueary that he described the shower incident as "sexual" to their clients.
"Mr. Paterno is gone," Ms. Roberto said. "I propose to the court there is nothing of record to corroborate the [alleged] false statements of Mr. Curley."
As for the alleged perjurious statements, she repeated that they were charged based on opinions the defendants offered.
"The habeas should be granted based on the nature of the questions and the nature of the answers [at the grand jury proceedings]," Ms. Roberto said.
But Judge Hoover echoed the prosecution when he asked if those arguments should be settled before trial, which has not yet been scheduled.
"It happens in pretrial all the time," Mr. Farrell said later. "The issue is keyed up because we're not arguing factual issues."
But the judge countered, "You can do the same thing at trial."
Mr. Farrell then continued: "Let's be frank about this. The fear is ... this will be a trial about whether Mr. Curley and Mr. Schultz exercised proper judgment, and the jury will think 'we don't like how they responded,' and they'll convict them, and that's not what a perjury case is about."
Throughout the hearing, both defense attorneys, who have asked for a bill of particulars, which would spell out the charges against their clients with more specificity, referenced what they called the "shifting sands" of the prosecution's case.
"We need an end point. We need a termination. We need to know what we're defending against so we can prepare for trial," Ms. Roberto said.
"There's been a consistent pattern of the commonwealth shifting its legal theory," Mr. Farrell said.
That was exemplified with the motion filed Wednesday related to the statute of limitations on the failure to report charge.
The prosecution argued in March that the statute should be 10 years and that the counts against Mr. Curley and Mr. Schultz met that time frame, as they alleged the shower incident occurred in February 2002 and the men were charged in 2011.
However, in May, as Mr. Sandusky's child sexual abuse trial was approaching, the attorney general's office filed amended charges in which it alleged that the incident actually occurred in February 2001.
"They've known at least since May the date was wrong," Ms. Roberto said following Thursday's hearing. Changing the argument on the statute now is "at the 11th hour."
"Under these circumstances, I think the commonwealth has to bear the consequences of their choices," she said.
But in his motion, Mr. Beemer wrote that the statute of limitations should continue to run until the reporting requirement is met.
"The Legislature need not recite the words 'This statute is intended to prohibit a continuing course of conduct' before an offense will be deemed a continuing one."
Paula Reed Ward: email@example.com or 412-263-2620.