Penn State's former athletic director says the death of former football coach Joe Paterno is grounds for dismissal of the perjury charges against him in connection with the Jerry Sandusky sex abuse case.

An attorney for Tim Curley filed a dismissal motion Monday in Dauphin County (Pa.) Court. Curley argued that Paterno's death last month left prosecutors without a required second witness to support the perjury charge.

The Patriot-News of Harrisburg, Pa., reported that the state attorney general's office discussed getting a statement from Paterno after he was diagnosed with lung cancer last November, but backed off after Paterno's doctor told them the coach wasn't healthy enough. Paterno died last month at age 85.

Curley also said that allegations he didn’t report suspected abuse by Sandusky in 2002 were filed under a revision of a state law that was passed five years later and that the statute of limitations has expired.
Prosecutors didn't respond to a request for comment.

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The 57-year-old Curley is on leave from the university. He is awaiting trial on charges that he lied to the grand jury investigating Sandusky and that he failed to properly report suspected child abuse.

Former Penn State vice president Gary Schultz, who faces the same charges as Curley, joined Curley's motion on Tuesday and also made his own argument for dismissal.

Schultz said his statements to the grand jury are opinions that cannot be proved false. Schultz testified that allegations made against Sandusky by former Penn State graduate assistant Mike McQueary in 2002 were "not that serious" and that it wasn't clear a crime occurred.

"Perjury prosecutions rarely rest on expressions of opinion or belief," wrote Schultz defense lawyer Tom Farrell in court records first obtained by The Associated Press.

Farrell also sought a more precise description of the part of Schultz's grand jury testimony that prosecutors allege constituted perjury.

 

A spokesman for the attorney general's office said Tuesday the agency had not received the filings but would review them when it had.

During a preliminary hearing for Schultz and Curley in December, McQueary testified that he saw Sandusky engaging in a sexual act with a boy in a football locker room shower.
 He said that he first spoke about it with his father and then contacted Paterno.

Paterno, who was fired as coach after the arrests but was not a target of criminal investigators, told the grand jury that McQueary recounted something of a "sexual nature" but that he did not press for details.
About a week and a half later, McQueary said, he met with Curley and Schultz, and the content of that meeting is central to the charges against the two administrators.

McQueary testified in December he told them he had seen Sandusky and a boy, both naked, in the shower after hearing skin-on-skin slapping sounds.

"I would have described that it was extremely sexual and I thought that some kind of intercourse was going on," McQueary said under oath in a Harrisburg courtroom.

He also testified that he saw Schultz, whose duties as senior vice president for business and finance included oversight of the university police department, as a police authority.

"I thought I was talking to the head of the police, to be frank with you," he said. "In my mind it was like speaking to a (district attorney). It was someone who police reported to and would know what to do with it."

Schultz, 62, retired after being charged on Nov. 5.
Sandusky, 68, has denied allegations he sexually abused 10 boys over a 15-year period. He faces 52 criminal counts and could go to trial in mid-May.

 On Monday, a judge ruled Sandusky can have supervised contact with most of his grandchildren and, in a win for the defense, determined the case will be heard by jurors chosen from the greater State College area.

The case also resulted in the departure of university president Graham Spanier, who has not been charged with any crime, and brought shame to one of the nation's premier college football programs.