Wednesday, March 19

Unsealed documents hammer Feudale, Baldwin. Lead to more questions.

Recently unsealed documents in the cases of Curley, Schultz, and Spanier reveal possible misconduct by Feudale and possible obstruction by Baldwin.  They also add to real questions about the evidence in this case.

By
Ray Blehar

While I have not had a chance to get through all of the filings that were unsealed, the few documents I reviewed were not good news for former PSU General Counsel, Cynthia Baldwin and former grand jury supervisory Judge Barry Feudale.


Feudale's Possible Misconduct

In Exhibit K of the Supplemental Memorandum Support of Motion to Quash Criminal Complaint (Exhibits G-O)​, Feudale made a minimum of two false statements with regard to his knowledge of the circumstances of the case.  

First, Feudale stated (at k., page 9)  he was not aware that Spanier was the subject of the investigation and was there to simply move the case along.




That statement appears to be false, based on the transcripts of Spanier's 13 April 2011 colloquy.  

Prior to Spanier taking the stand, Fina concluded an in-camera argument regarding the justification for the expansive scope of a subpoena for PSU e-mails from 1997 and earlier.  During that argument, Fina stated that Curley and Schultz had been informed about the incident witnessed by Mike McQueary that was of a sexual nature and the men met with Spanier to discuss possible actions.  Fina stated the men chose to report the incident to the nonprofit involved, but not report the incident to the proper authorities.  Fina then made this statement regarding the knowledge of PSU officials that would imply they were subjects of the investigation:





Later, Feudale falsely (at w., page 11) stated he did not inquire about the representation of Baldwin during the Spanier colloquy.




However, the transcript of the colloquy clearly shows Feudale did make the follow up inquiry and that Baldwin informed him she represented the University, solely.





However, the coup de grace in Feudale's argument came on page 11, point z. where he made a judgment that Baldwin was inexperienced, rather than purposely obstructing the investigation.  Feudale then goes on to state that her inexperience prevented her from going beyond the "alleged inquiries of Spanier, Curley, and Schultz as to documents/relevant to the Sandusky investigation." 

Looking at this information in combination, the evidence reveals that Feudale believed Spanier, Curley, and Schultz were obstructing the investigation -- not Baldwin.  

Indeed, Feudale knew that the PSU Three were under investigation.  

Baldwin Grand Jury Subpoena Compliance

As reported at the November 2013, Upon Further Review presentation,  e-mails that were turned over to Ryan Bagwell by the Pennsylvania Department of Education revealed that Baldwin was not complying with grand jury subpoenas.  It was unclear which subpoenas were impacted.  However, the conversations, particularly Ken Frazier's mention of "issues with the incumbent" and timeline of decisions revealed that the non-compliance may have led to Baldwin's abrupt retirement in January 2012.  



However, the recently unsealed documents revealed the December 19, 2011 e-mail in its entirety at Exhibit O of  the Supplemental Memorandum Support of Motion to Quash Criminal Complaint (Exhibits G-O).  The e-mail, from Frank Fina to then-PSU Counsel Cynthia Baldwin castigated her for failing to comply with a subpoena concerning Sandusky's retirement information, requested on December 29, 2010, as well as for a "lengthy history of noncompliance."   Fina stated that the retirement information had just been received on December 19, after Baldwin had been admonished by the grand jury judge.  The full e-mail follows, however, the subject of the foot-dragging on the turnover of Sandusky's retirement information is interesting to say the least.
































Despite the "bailing of water" by Judge Feudale,  Cynthia Baldwin understood her responsibilities to answer subpoenas.  She served on the bench in Allegheny County for 16 years.  Moreover, on July 19, 2010, while Baldwin was legal counsel, PSU revised Policy AD49, which contains language stating:  

All legal documents including subpoenas are to be referred to or routed through The Office of General Counsel. The Office has the prerogative to send them to other parties after receipt. The Office of General Counsel shall establish all procedures for handling and addressing legal documents.   

As Fina remarked, Baldwin and PSU had a history of partial compliance with subpoenas.  Agent Sassano noted that PSU was not quick to respond to Subpoena 191 for the names of the physical plant employees (issued in May 2011).   But the delay in turning over the Sandusky retirement information was a new revelation of the unsealed documents and deserves discussion.


Sandusky's Retirement and Emeritus Status

In an earlier blogpost, I contended that the issue of emeritus status was overblown and that the granting of the title and benefits was not all that unusual, according the PSU OHR official Janine Andrews.  However, the Freeh Report blamed the emeritus status (granted by Spanier) and Sandusky's access to facilities as enabling his crime spree - despite the evidence that no crimes occurred on campus after 2001.

Given that abuse incidents on campus by Sandusky after his retirement were few, there were other issues that may have caused PSU to balk at handing over the information.

First, the approval of Sandusky's emeritus status was given by then-PSU Provost Rodney Erickson.  Freeh Report Exhibit 3I reveals that Erickson approved the emeritus position and title on or about August 31, 1999.   

Next, a hand-delivered letter dated June 29, 1999, titled "IN RE: Retirement Perquisites" (Freeh Report Exhibit 3H) was signed off by then-Athletic Director Tim Curley and allegedly approved by Senior Vice President for Finance and Business/Treasurer, Gary Schultz.  However, upon closer inspection of the letter it appears that Schultz may not have been the original signatory.

When viewed at high magnification, it appears that Schultz signature and title block may have been pasted over the original signature.  Note that some of the text has "aliasing" (or shadowing) while other text is very clear. In other words, this is yet another document of questionable provenance that has been discovered in the Freeh Report.  It is also notable that former Department of Homeland Security Secretary Michael Chertoff identified documents of questionable provenance in his review of Freeh's report on the Wynn Resorts. 



Once again, this is not proof of evidence tampering, but it is suspicious and it raises the question:  Was Schultz's signature put on this document in order to "implicate" him, along with Curley and Spanier, in the granting of emeritus status (and related benefits) to Sandusky? 

While it is well established that PSU was foot-dragging on its responses to the various subpoenas during this case, the other question that must be answered is whether or not the information they turned over, such as this document and the e-mail evidence, was authentic?

To be continued....

ADDENDUM:  Fina's remark about Penn State selectively searching and performing a privilege review before the release of the e-mail evidence to the OAG appears to be a practice that was likely recommended by former Merck general counsel and Special Investigations Task Force Co-chair, Kenneth Frazier.  Please see this article written by the Pepper Hamilton law firm regarding attorney-client privilege in the Vioxx case.  http://www.pepperlaw.com/publications_article.aspx?ArticleKey=1279



12 comments:

  1. As more and more documents are released, will the BOT finally have something to say or will they continue to be mute on their involvement in the scheme to fire JoePa?

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    Replies
    1. Bob,
      They'll stay mute, on the advice of their attorneys.

      Delete
  2. Their "personal" attorneys or the ones representing "The Corporation"? ;-)

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  3. Ray - Fina, Feudale and Baldwin just look worse and worse as more documents become public. I just wonder what dirt on Feudale remains sealed in his Supreme Court dismissal hearing.

    I do think you are correct that Sandusky's emeritus status had little or no impact on his molestation activities. The PSU campus is a very open campus. A man who never worked at PSU would be free to bring children on campus and use many of the athletic facilities or showers.

    Freeh never mentioned if Sandusky even had keys to the Lasch Building. Perhaps that building wasn't even locked at night, and he just walked in.

    Sandusky's emeritus status was unusual in a couple of ways however. Sandusky lacked the minimum academic rank to qualify, and the agreement was made between Curley and Sandusky. An emeritus professor usually is affiliated with a Dept., not an athletic director. Was Curley even a professor?

    How many ex-football coaches are given Emeritus Professor status? I've seen many named "Football coach emeritus" but not Emeritus Professor. Sandusky may be the only Asst. Professor/Asst. Coach ever given Emeritus Professor status at PSU and maybe in the whole country.

    ReplyDelete
    Replies
    1. As I noted in the post, the PSU OHR official Janine Andrews stated they had made exceptions for emeritus status and this wasn't a big deal. Lisa Powers was quoted in another article downplaying the importance of the title/benefits when Professor Neuwirth (IIRC) was cited for some sort of sexual abuse crime.

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    2. Tim Berton,
      There is no evidence that Curley made the decision/agreement for emeritus status.

      The e-mails clearly show that Spanier had approved it and Erickson cleared it administratively.

      The letter that Curley signed that I referenced in the blog made NO MENTION of emeritus status.

      To repeat, you are completely wrong on the emeritus rank being an agreement between Sandusky and Curley.

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    3. Ray - My source is the retirement letter (Exhibit 3H in Freeh Report) from Curley to Sandusky.

      The letter says Sandusky was "to work collaboratively with each other in the future in community outreach programs, such as the Second Mile..."

      and "... the nature and extent of such collaborative efforts ... will be as mutually agreed by you and me."

      It sure sounds like Curley was going to work with Sandusky on Sandusky's emeritus work. If not Curley than who was Sandusky working with at PSU in his emeritus work?

      Delete
    4. Tim,
      That reference makes no mention of emeritus status. There is no "work" requirement for an "emeritus" anything. It is an honorary title given to someone who is retired.

      Ray

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    5. Hard to say what emeritus means at PSU from Freeh's slanted and incomplete report. Freeh didn't even include a copy of Sandusky's emeritus nomination letter. I wonder what was in it he didn't want made public.

      What seems clear is that Sandusky wanted to do his children's charity work in affiliation with PSU in retirement. I suspect that was used as one justification for the emeritus title whether it was a requirement or not.

      It would be interesting to compile a list of PSU professors granted emeritus status in 1999 and see what their qualifications were and if they did continue an affiliation with the university after retirement.

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  4. I'm not sure that this is an answer to your question, Tim, but PSU coaches are pretty famous for being under paid. One of the main perks of PSU had been lifetime employment and retirement benefits. A lot of Joe's fights with the BoT during his losing years was his refusal to fire coaches after a bad year. Taking that into account, as well as Second Mile's active charity program and the positive PR for both sides, I'm pretty sure that Sandusky was a special case. But he might not be the only coach ever given the status.

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    Replies
    1. According to Erickson in the Freeh Report (pp.60-61), Sandusky's emeritus nomination was a case without precedent, and he was uneasy about granting Sandusky emeritus status given his low academic rank and the "prior history of who was granted emeritus status."

      Freeh didn't provide any more relevant details such as the others who received Emeritus rank in 1999 and their qualifications relative to Sandusky.

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    2. Tim,
      The Freeh Report's summary of the decision is obviously slanted. Read the e-mail chain about emeritus status. The OHR official, Janine Andrews concern about "precedence" was to grant Sandusky an emeritus coach title and not have any type of professorial title along with it. That's why they ended up using Associate Professor/Assistant Coach Emeritus.

      Yes, Freeh was very good at not providing relevant details. I'm in 100% agreement with you on that. In fact, Freeh threw away all the details that didn't fit into his narrative that the granting of emeritus status was some exceptional honor. As I noted, Lisa Powers said it was quite common.

      From the article on Neisworth.....
      We asked Penn State why Professor Neisworth is still listed as a professor emeritus on the school’s website. She responded:

      The emeritus title was granted after the charges were declared unfounded by police and the courts. It is common in academe to grant emeritus status — so he remains listed in our database as do our other emeriti faculty.He is not on campus and has not had an office since he retired. He no longer teaches here in any capacity.

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