The Attorney General’s Office is asking a judge to deny a request to toss out charges against former Penn State administrators who claim they have been unfairly prosecuted in an alleged cover-up of the Jerry Sandusky child sexual abuse scandal.
In a memo filed Tuesday with the Dauphin County Clerk of Courts, Chief Deputy Attorney General James Barker says there is no basis to comply with the defendants’ requests that charges be thrown out and grand jury testimony be suppressed.
“The defendants appear to be of the view that, if they appear before a grand jury with conflicted or ineffective counsel, they have a ‘get out of jail free’ card to play at a later date, including after a preliminary hearing,” the document states. “…(T)here is simply no basis in law for this assertion, and the defendants are not entitled to the remedy that they seek.”
At issue is the controversial role former Penn State General Counsel Cynthia Baldwin played in the grand jury proceedings for the Sandusky scandal.
Former Penn State President Graham Spanier, former Athletic Director Tim Curley and retired Senior Vice President for Finance Gary Schultz say they thought Baldwin was their personal attorney. They believe her testimony violated attorney-client privilege and criminal charges should be dismissed and their grand jury testimonies suppressed from the criminal trial.
However, Barker argues Baldwin’s testimony was not part of the evidence used to establish probable cause during the defendants’ preliminary hearing and therefore the prosecution has a legitimate case.
Additionally, Barker argues the defendants’ claim that Baldwin had a conflict of interest by representing both the defendants and the Penn State as a whole does not hold water. Instead, he says the defendants and Penn State shared interests and that Penn State could actually have violated a federal law, the Clery Act.
“Thus, the defendants and PSU’s interests in avoiding criminal and civil liability were alike at the time of the defendant’s grand jury testimony,” Barker states. “In the end, the defendants arguments amount to nothing more than claims of ineffective assistance of counsel. They fail to demonstrate that such claims are ripe for consideration at this time.”
Additionally, Barker argues that any advice Baldwin provided the defendants would not have changed the outcome of the grand jury investigation. He says each defendant chose Baldwin as their counsel and the presiding judge, Barry Feudale, advised defendants of their rights. He says any claim Baldwin violated attorney-client privilege by testifying before the grand jury is false.
“Regardless of how the defendants or attorney Baldwin choose to characterize the relationship … their claim of privilege fails,” Barker states.
Even if the defendants assumed Baldwin represented them individually, Barker says the claim of an attorney-client privilege violation still does not exist due to a crime-fraud exception.
“In all of their many findings, the defendants have failed to show that dismissing the charges or quashing the presentments is a proper remedy,” Barker states.
Meanwhile, Curley’s attorney, Caroline Roberto of Pittsburgh, filed a memo Tuesday in which she makes an argument that the judge dismiss some of the charges against Curley and suppress his grand jury testimony. At the same time, Schultz’s attorney, Tom Farrell of Pittsburgh, filed a memo Tuesday making the same request for his client.
Dauphin County President Judge Todd 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 where the charge of perjury allegedly occurred. The men face several criminal charges including perjury, failing to report child endangerment and conspiracy.