Attorneys for former Penn State administrators say the judge and deputy attorney general in the Jerry Sandusky grand jury investigation acted unfairly — therefore the criminal charges against them should be thrown out.
Defense attorneys Timothy Lewis and Elizabeth Ainslie filed a memo Tuesday with Dauphin County President Judge Todd Hoover in which the attorneys say charges against former Penn State President Graham Spanier related to the alleged cover up of a child abuse scandal should be dismissed. Attorneys for former Athletic Director Tim Curley and retired Senior Vice President for Finance Gary Schultz filed similar documents Tuesday.
Hoover is presiding over the case for Spanier, Curley and Schultz. The criminal proceeding is taking place in Dauphin County because that is where the grand jury met and also where the charge of perjury allegedly occurred. The men face several criminal charges including perjury, child endangerment and conspiracy.
Spanier’s attorneys argue in the memo that Grand Jury Supervising Judge Barry Feudale and prosecutor Deputy Attorney General Frank Fina did not act properly during the grand jury proceeding during which Spanier, Curley and Schultz testified.
The criticisms stem from the controversial role former Penn State General Counsel Cynthia Baldwin played in the proceedings as Spanier, Curley and Schultz believed she was their attorney. At the same time, Baldwin told Feudale that she was solely representing the university’s interests, according to transcripts.
Spanier’s attorneys argue that if Baldwin was representing the university, not the administrators individually, then Feudale and Fina acted improperly by allowing Baldwin to sit in during Spanier’s grand jury testimony as well as participate during the proceeding.
Additionally, if Baldwin was indeed representing the university, not the men individually, attorneys say Feudale and Fina should have clarified that with Spanier when he stated during his testimony that Baldwin was his attorney. Going further, attorneys say that if Baldwin was representing the university and not Spanier, then Feudale and Fina wrongly allowed Spanier to testify without legal representation.
“Judge Feudale hid that fact from Dr. Spanier by permitting Ms. Baldwin to be present during Dr. Spanier’s grand jury testimony as if she were his lawyer. … Rather than raising the fact that Ms. Baldwin would not be providing representation to Dr. Spanier, and therefore that she should not be permitted in the grand jury session, the (Office of the Attorney General) representatives remained silent,” the document states.
Spanier’s attorneys also argue that Baldwin led Spanier to believe she was representing him during his grand jury testimony and that she, along with Feudale and Fina, never directly told Spanier she was solely representing the university.
“In sum, Dr. Spanier was affirmatively misled to believe that he had counsel who would protect his rights and to proceed with his testimony on that understanding, when in fact he did not have counsel representing him,” the document states.
Ultimately, Baldwin testified during the grand jury proceedings and her statements did not show Spanier or the other administrators in a positive light when it came to their handling of the Sandusky scandal.
During her testimony, Baldwin said she would describe her perception of Spanier through the Sandusky investigation as dishonest.
“He is not a person of integrity. He lied to me,” she said.
Attorneys not only argue Spanier was deprived of counsel during the proceeding, but that Baldwin’s presence during his grand jury testimony violated the secrecy of the grand jury. Only grand jurors, prosecutors, witnesses, witnesses’ attorneys, and a stenographer are allowed in the courtroom. The judge can make exceptions, for example for the lead criminal investigators in the case. However, attorneys say the judge never issued such an order for Baldwin to be present.
“The egregious nature of Ms. Baldwin’s conduct, the supervising judge, and the Commonwealth’s failure to prevent such conduct, and the resulting prejudice of Dr. Spanier” warrant the criminal charges be thrown out.
Spanier, Curley and Schultz have all maintained they are innocent and say Baldwin’s testimony violated attorney-client privilege as they believed she was their attorney at the time.
Attorneys accuse the Attorney General’s office of prosecutorial misconduct by leading Spanier to believe he had legal representation through Baldwin.
“Through a subterfuge, they obtained his uncounseled testimony,” the document states. “The OAG’s conduct here also compromised the structural protections of the grand jury and rendered the proceedings fundamentally unfair.”
The Attorney General’s office filed a response to defense attorneys’ claims saying a conflict of interest for Baldwin does not exist because the defendants and Penn State had the same interests in the case. Prosecutors also argue that the defense has not shown that an interest for Penn State resulted in Baldwin offering detrimental advice to the defendants.
Additionally, prosecutors say the secrecy of the grand jury was not violated by allowing Baldwin to sit in during grand jury testimony saying Baldwin represented the university as well as the defendants as employees of the university. Furthermore, prosecutors say Baldwin never disclosed any confidential or privileged information.
Prosecutors asked that the judge deny all motions to dismiss charges.