Updated 3:38 p.m.
Pennsylvania’s attorney general said Wednesday that his office will appeal a federal judge’s decision to vacate the child-endangerment conviction of former Penn State President Graham Spanier.
Attorney General Josh Shapiro announced the decision a day after U.S. Magistrate Judge Karoline Mehalchick ruled Spanier was improperly charged under a 2007 law for actions that occurred in 2001.
Mehalchick ruled the evening before Spanier was scheduled to report to jail. She gave Shapiro’s office three months to retry Spanier, who had been convicted of a misdemeanor for how he responded in February 2001 to a complaint about former assistant football coach Jerry Sandusky abusing a boy in a team shower late on a Friday night.
Shapiro said federal courts have limited power to act in state criminal cases and argued Mehalchick exceeded that authority. Spanier and his lawyer did not immediately return a message seeking comment.
Spanier “was personally advised that children were being sexually abused on school property,” Shapiro said in a news release. “Evidence proved he chose not to help the children — but instead to cover up the abuse, despite being well aware of his responsibility as a supervisor.”
Spanier, 70, was forced out as president shortly after Sandusky’s arrest in November 2011 and was himself charged a year later with a criminal cover-up. Many of his charges were thrown out by an appeals court before trial, and he was acquitted of the rest except for child endangerment.
He had been scheduled to begin serving two months in jail on Wednesday morning, followed by two months of house arrest. Spanier remains a tenured professor in Penn State’s College of Health and Human Development and is on paid administrative leave.
Mehalchick wrote that she agreed with Spanier’s argument “that this retroactive application is unreasonable and far more extensive than anyone in 2001 would have been able to reasonably foresee.”
Shapiro spokesman Joe Grace said the case would be appealed to the 3rd U.S. Circuit Court of Appeals, but gave no timeline.
Spanier’s lawyers have argued that applying the child endangerment law to acts that occurred years before the current version of the law was passed violated the state and federal constitutions’ ban on retroactive application of criminal laws. The child endangerment revisions in 2007 applied the law to those “employing or supervising” people who were responsible for the welfare of a minor child.
Prosecutors had argued the 1995 and 2007 versions of the law encompassed and criminalized the same conduct.
Spanier has said the abuse of the boy, who has never been conclusively identified, was characterized to him as horseplay. He did not testify at his trial and told the judge at sentencing that he regretted not intervening more forcefully.