E-mails are likely to be key to criminal cases against Penn State officials

Previously undiscovered e-mails by top Pennsylvania State University administrators formed the basis for the scathing report last month that took the school to task for its handling of the Jerry Sandusky scandal.

This week, their impact will be felt for the first time in the criminal case against suspended university athletic director Tim Curley and former vice president Gary Schultz.

Defense lawyers for both men are expected in a Dauphin County courtroom Thursday for the pair's first hearing on charges of perjury and failure to report abuse since last year.

Attorneys Caroline Roberto and Thomas J. Farrell will argue that counts against their clients should be thrown out and that notes from Penn State's internal investigation led by former FBI Director Louis Freeh should be preserved.

But while the e-mails Freeh first made public last month are not mentioned in any of the defense motions, they are chief among a series of developments, including the death this year of head football coach Joe Paterno, likely to change the course of the case.

The e-mails bolster prosecutors' claims that Curley and Schultz worked to cover up allegations against Sandusky in 2001 and later lied about it to a grand jury.

The last time Curley and Schultz appeared in court - at a December preliminary hearing - the case against them boiled down to a war of words: theirs against those of assistant football coach Mike McQueary.

McQueary testified that he told both men he saw Sandusky molesting a boy in a locker-room shower in 2001.

The administrators said McQueary never made the full extent of the allegation clear to them. They said he described the encounter as nothing more than "horseplay."

The e-mails now allow prosecutors to use Curley's and Schultz's words against them.

The correspondence suggests that both men knew enough at the time to at least consider alerting child-welfare workers about McQueary's accusations.

In one exchange, Curley suggests abandoning a plan to report Sandusky to investigators at the Department of Public Welfare as a result of McQueary's allegation.

Instead, he suggests talking with Sandusky one-on-one, a plan both Schultz and then-university president Graham B. Spanier agreed was a better alternative.

Other e-mails show that Curley and Schultz kept a close eye on a 1998 investigation that university police opened into allegations that Sandusky had inappropriately showered with two young boys.

Schultz, who oversaw the campus police, later told grand jurors he remembered the probe only vaguely.

Since the release of Freeh's report last month, many - including Curley's and Schultz's attorneys - have asked why prosecutors failed to cite those e-mails when they first brought charges against their clients.

According to sources with knowledge of the investigation, state police were unaware of the e-mails' existence until earlier this year.

Investigators initially subpoenaed Penn State in March 2011 for all correspondence dating to 1998 that mentioned Sandusky. The university said it was able to find fewer than 50 such e-mails. The batch included none of the more incriminating messages.

Investigators eventually tracked down an off-site server that contained data going back as far as the mid-'90s. But detectives and Freeh's group only extracted the relevant e-mails earlier this year, the sources said.

"Penn State, to be frank, was not very quick to get us information," Anthony Sassano, an investigator with the Attorney General's Office, testified at Sandusky's trial last month.

The administrators' attorneys have argued that the e-mails are hardly as damaging as Freeh and prosecutors suggest.

"This information confirms that . . . Tim Curley and Gary Schultz conscientiously considered Mike McQueary's reports of observing inappropriate conduct, reported it to . . . Spanier and deliberated about how to . . . handle the situation properly," they said in a June statement.

What's more, they argue, prosecutors' failure to include the e-mails in their original presentment makes it nearly impossible for them to know which portions of their clients' grand jury testimony they should be prepared to defend at trial.

The issue is just one of the motions Judge Todd A. Hoover is to consider at Thursday's hearing.

Other issues include:

How Paterno's death could affect the case. Schultz's and Curley's lawyers argue that without Paterno to corroborate McQueary's testimony, prosecutors cannot adequately prove his version of events. Prosecutors counter that they now have additional evidence - including the 2001 e-mail exchange - that bolsters their case.

Whether McQueary's faulty recollection of the timing of the shower incident is enough to sink the commonwealth's case. McQueary originally placed the incident in 2002, but his testimony at Sandusky's trial and the newly discovered e-mails date it to 2001. Curley's and Schultz's lawyers argue that puts the purported crime outside the statute of limitations.

The emergence last month of a central Pennsylvania man who says he was the boy McQueary saw in the shower.

Despite his claims, he is unlikely to play a significant role in Curley's and Schultz's prosecution, sources with knowledge of the case have said.

Investigators were aware of his story as early as last year but chose not to call him to testify at Sandusky's trial.

They have publicly maintained that the boy's identity remains unknown.

If convicted on both counts against them, Curley and Schultz could face up to seven years in prison. A date for their trials has not been set.