Two former Penn State administrators lost a second state appeals court ruling in less than two weeks Tuesday when Superior Court threw out their request to review whether a grand jury judge had authority dismiss charges against them.
The appeals court agreed with prosecutors, who argued the Supreme Court alone can consider matters regarding a grand jury investigation. The high court earlier this month, in a parallel matter, also ruled against retired vice president Gary Schultz and former athletic director Tim Curley.
The two men face criminal charges for an alleged conspiracy to cover up complaints about former assistant football coach Jerry Sandusky acting inappropriately with children. Sandusky, a former assistant football coach, was convicted a year ago of 45 counts of child sexual abuse and is serving a decades-long state prison sentence.
A spokesman for the state attorney general's office and Schultz's lawyer Tom Farrell both declined comment. A message was left for Curley's legal defense team wasn't immediately returned.
In a filing made last month, Farrell told Superior Court the judge who supervised the grand jury that recommended charges against Curley, Schultz and Sandusky was wrong to decide he did not have authority to throw out charges against them. Farrell also said the judge, Barry Feudale, should have held a hearing on that motion and on the role played before the grand jury by Penn State's then-general counsel, Cynthia Baldwin.
Baldwin accompanied the men to their grand jury appearance, but later testified against them, prompting complaints their right to legal counsel was violated.
Farrell wrote that the issue was "the allegation that Ms. Baldwin's attendance at the grand jury testimony of Mr. Schultz and his co-defendants was breach of grand jury secrecy if she was not acting as counsel to those witnesses" and the prosecution's failure to obtain a judicial ruling before offering attorney.
The state Supreme Court on June 7 issued a pair of unsigned orders that denied petitions for review filed by the two defendants and specified they were free to raise the same issue during their criminal prosecution.
Curley and Schultz were first arrested, along with Sandusky, in November 2011. Late last year prosecutors added more charges against them, and for the first time also charged Graham Spanier, who was forced out as Penn State president after Curley, Schultz and Sandusky were charged.
Spanier has a pending motion for dismissal in Dauphin County court, according to the online court docket. He has not appealed to the state's Superior or Supreme courts.
There has not been a preliminary hearing for the charges against Spanier, or for the 2012 charges against Curley and Schultz.