Part 3: What Corbett and Fina should fear about Kane's Sandusky probe

Corbett and Fina's foot-dragging led to continued abuse of Victim 9, but there was more misconduct than just delaying the arrest of Sandusky.

By
Ray Blehar

Governor Corbett

In Part 2 of this series, I revealed that the foot-dragging in the Sandusky case led to the continued victimization of Victim 9.  In addition, I stated that it was highly probable that there were other victims in Lock Haven and at Central Mountain High School (CMHS) that should have resulted in an immediate arrest of Sandusky.  I will touch on CMHS a bit more, then move on to other potential areas of misconduct, but first a word from Governor Tom Corbett.

According to Governor Tom Corbett, former OAG prosecutor Frank Fina should have nothing to fear about Kathleen Kane's investigation of the Sandusky investigation.  As Corbett pounded the podium at a July 2012 press conference, he exclaimed that he was tired of hearing about what took so long for the successful prosecution and a "monster was taken off the streets."  They had successfully convicted Sandusky on 45 of 48 counts.

As Governor Corbett should know, sometimes the result is undermined by how you got to it.  In math class, you had to show your work on how you got the answer and it appears that Corbett doesn't want ANYONE to "show the work" in the Sandusky case.

As it turns out -- there was quite a lot wrong with, not just the work, but even with the result.

40 vs. 400

Why was it that the OAG decided on a 40 counts in November 2011, rather than 400 counts?  

Back in January 2011, former State Police Corporal Joseph Leiter told the mother of Victim 6 that there was enough evidence for 400 counts and that they had less evidence in murder cases.  Unless Leiter was lying, there had to be more than two victims up until that point.  

According to information on the public record, there were allegedly just two victims in November 2010 -- Aaron Fisher and the unknown Victim 2.  The Victim 2 case was a single incident involving five counts.  Therefore, either Aaron Fisher's abuse could substantiate 395 counts on its own or there were more victims that we hadn't heard about.  

Smart money is on the latter.

 NBC's Rock Center featured an interview with another boy from Lock Haven who stated he was not abused, but was in contact with Sandusky from 1997-2003.  Using 1997 as a starting point, the math shows that Sandusky had been interacting with children in the Lock Haven area for about 11 years before Fisher reported him for abuse.  According to Fisher's trial testimony, troopers Cavanaugh and Akers told him in December 2008 that "he was not alone" and that there were other victims.  Similarly, trooper Scott Rossman also told Fisher about other victims (see Commonwealth v. Sandusky, 6-12-2012, page 77) in June of 2009.  

Sandusky became a volunteer assistant football coach at Central Mountain High School in the Fall of 2003, thus he had access to children not only through his work at Second Mile, but through coaching.   Based on a study by "Abel, et al, of 377 non-incarcerated, non-incest-related pedophiles...(the) average, homosexual pedophile had abused 150.2 children and committed 281.7 acts." From this information, the odds favor Sandusky abusing more than just one child (Fisher) at CMHS and far more children than the 17 that were listed by the OAG as accusers in the Sandusky case. 

As I noted in this blogpost, the fact that Sandusky dropped his appeal to DPW in February 2009 is yet another indicator that other victims had come forward.  It would seem rather easy for a pillar of the community like Sandusky to win an appeal against a single, unconvincing victim.  Sandusky's dropping his appeal would have come about because the police had found other victims.  If what I have written so far is true, then the OAG could have charged Sandusky almost immediately, publicized the arrest, and in so doing, put out a call for more victims to come forward.  

If we play out this scenario, and Corbett and the OAG bring 400 counts, it would have been a rather insurmountable case for Sandusky to fight and probably would have resulted in a plea deal. Why wouldn't Corbett and the OAG wanted to go this route?

Perhaps because they wanted a "circus" trial -- more on that later.

Footdragging

While many opine that foot-dragging on this investigation was due to Corbett's gubernatorial campaign and not wanting to upset potential voters with Penn State ties, I'm not in that camp.  I also do not believe that the assignment of a narcotics agent to lead the OAG investigation was a result of a manpower shortage due to the BonusGate investigation, but was a clever way to undermine progress on the case. 

According to the public record, the case was transferred to the OAG from Centre County in March 2009.  I suspect any records of potential victims, aside from Aaron Fisher, were not provided to the OAG investigator.  He was simply told the leads from Fisher didn't pan out and had been exhausted by the state police.  Agent Sassano and trooper Rossman were not assigned to work the case until June 2009, with Sassano showing up on the 22nd to assist in setting up a telephone sting operation.  Thus, between March 2009 and June 2009, the case was likely dormant - and aside from the phone sting - there didn't appear to be any significant activities on the case from July 2009 to November 2010.  However, on June 19, 2009, Corbett established a grand jury to look into the matter and Fisher testified to it on that day.

Even after the mother of Victim 6 and her daughter identified three potential victims in January 2011, the state police and OAG investigators were slow to act on those leads and didn't present Victim 6 as a witness at the grand jury until June 2011.    While there was a blip of progress right after Corbett's election as Governor, the investigation really didn't take off until March 2011 and that marked the point that the Commonwealth questioned Spanier about his role in the 2001 incident.  Shortly after Spanier was interviewed he was called to testify at the grand jury.  It was around that time that the investigation started to pick up steam. 

Withholding Evidence From Investigators/Collusion

In June 2009, Deputy Attorney General Jonelle Eshbach informed Mike Gillum (Fisher's therapist) that the OAG was aware of another Sandusky incident from 1998.  The police and OAG investigators would not follow up on that lead until January 2011 and their source of the lead was, allegedly, Mike McQueary.   

Also, it is highly unlikely that the anonymous e-mail tip that allegedly led to investigators to McQueary just so happened to be sent one day after Governor Corbett's election.  While it does appear the e-mail tip is real, the timing of the tip is highly questionable and it is more likely that the e-mail provided "cover" for Corbett and the OAG to release the McQueary lead, which they had been sitting on, to investigators.

Agent Anthony Sassano
Kept in dark about case?

At the Sandusky trial, Agent Sassano stated that he found out about the 1998 incident after interviewing Mike McQueary in November 2010.  Sassano testified that the McQueary interview provided the impetus for them to ask the University Park Police to check their records for incidents involving Sandusky. 

 An individual who was interviewed by Sassano in August 2012, stated that he came to interview armed with a stack of documents about the scandal.  He asked Sassano a number of questions, particularly about John Seasock, to which Sassano replied he had never heard of Seasock.  It is truly amazing that the lead investigator on the case, Sassano,  did not know of information on the public record, thus making it even more likely that the OAG withheld sensitive information about the case from investigators.

Manipulating dates of crimes

The Commonwealth's Bills of Particulars in the Sandusky case show some rather interesting changes of the dates of the crimes.  First, the Victim 5 incident was first listed in the grand jury presentment as occurring in 1998.  The first Bill of Particulars in February 2012 set the date range of the crimes between 1996 and 2002, but by May 2012 the date had been isolated to August 2001.   Was this the actual date of the crime, or was this date changed in an effort to bolster the Endangering of the Welfare of Children (EWOC) charge against PSU officials?

In the Victim 9 case, it appears the date change is a matter of "self-preservation."  The November 2011 grand jury presentment placed his conduct with Sandusky between 2004 and 2008, however the first Bill of Particulars stated the abuse occurred between 2005 and 2009.  The 2009 date is troublesome because the Sandusky investigation started in November 2008, thus indicating that Victim 9 was abused while Sandusky was under investigation.   In May 2012, the final Bill of Particulars changed the end date to December 2008, which is still problematic but takes Corbett and the OAG off the hook for any abuse.  Unfortunately for Corbett, Victim 9 testified that he was abused through his 16th birthday in July 2009 revealing that an EWOC charge could be on the horizon for the Governor.

Manipulating locations of crimes

In the Victim 5 case above, the location of the crime scene was changed from the East Area Locker Room (in 1998) to the Lasch Building (in 2001).  I suspect this change was not only about the EWOC charge, but to sensationalize the issue of Penn State granting Sandusky emeritus status as a retiree, which gave him authorized access to Penn State facilities.

However, the more egregious location change occurred at the Sandusky trial in the case of Victim 8, or the so-called janitor incident.   The November 2011 grand jury presentment stated that the incident occurred in 2000 in the Assistant Coach's Locker Room in the Lasch Building. That location stayed consistent through both versions of the Bills of Particulars, however, prosecutor Fina changed the location to the Staff Locker Room during a sidebar at the trial.  I suspect the reason for that change was that defense attorney Karl Rominger made the point that if janitor Petrosky's view in the Assistant Coach's Locker Room was only of the bottoms of the legs, that would have been the same view for the eyewitness, Calhoun.  The only way to beat Rominger's argument was for Fina to change the location to the obstruction-free Staff Locker Room.  

Withholding Evidence From Defense

As noted extensively in this blogpost, it appeared that the prosecution withheld its knowledge of the e-mail evidence from the defense for a considerable length of time.  

The preliminary testimony of PSU IT Department's John Corro and the grand jury testimony of Cynthia Baldwin appeared to confirm that the e-mails were turned over to the OAG in April 2011.   Fina's in-camera argument for e-mails from 1997 and earlier,  and other statements requesting a "broader set" of emails, the "e-mails in question still to be acquired," and "illusions (sic) or direct statements to Sandusky," indicate that the e-mails from 1998 and later were already in the OAG's possession.

Moreover, OAG computer forensics expert, Braden Cook, never testified to the date of the original receipt of the e-mail evidence by the OAG.  On page 66 of the July 30, 2013 preliminary hearing part 1, Cook testified that "in March of 2011 we identified an item that we supposedly had received had not been accounted for."  Cook would later correct the date to March 2012 while under cross-examination, but, nevertheless, no one has yet to testify to the original date of receipt of the Schultz emails.  Also, it should be noted that Cook testified he received the replacement files on March 23, 2012 from the OAG's security operations -- and not from the Freeh Group.

Cook joined the Sandusky investigation in November 2011.  Whomever was overseeing computer forensics tasks during the period that John Corro turned over the three USB drives (in response to Subpoena 1179) did not testify, nor was the person identified.  As I noted in my San Diego presentation, retrieval of Schultz's Outlook .pst file, where all of his email would have been archived after he left PSU, would have been very easy.  Schultz had taken care to ensure those files were transferred over during the system switch in 2004.

OAG forensic expert made no mention of Freeh turning over e-mails.

A study of the March 2012 perjury particulars for Curley and Schultz reveal that the e-mail evidence was likely used to support several of the charges.  However the Commonwealth did not make the existence of the e-mail evidence known until press leaks occurred in late June 2012.  Moreover, the Commonwealth did not correct the record that Louis Freeh had made "independent discovery" of the email evidence in the case.  It appears that the OAG was colluding with Louis Freeh to fool the public into believing that the investigation conducted by the former-FBI director was independent and separate from the OAG investigation, when it was more likely that the OAG was feeding evidence to Freeh's team.

Fina's (and Feudale's) Grand Jury High Jinks

The recent injunction filed by Graham Spanier's legal counsel revealed a number of alleged violations of Spanier's Constitutional rights and ethical violations.  First, Baldwin told the judge that she “solely” represented Penn State. But then in the grand jury room, as Feudale advised Spanier of his rights, the judge referred to Baldwin as “your lawyer” and “your counsel.”  Then Feudale heard Spanier identify Baldwin as his counsel.   Fina (and Feudale) didn’t do anything to correct the error, thus knowingly depriving Spanier of his right to counsel.

Read more here: http://www.centredaily.com/2014/03/31/4112546/graham-spanier-lawyer-seeks-injunction.html#storylink=cpy

Next, Fina told the Feudale that the attorney-client privilege concerns raised by PSU's lawyers, with regard to allowing Baldwin to testify about her discussions with Curley, Schultz, and Spanier (about their preparation for the grand jury), could be resolved later and that he would avoid asking any questions related to those discussions.  Then Fina proceeded to ask questions about Baldwin's preparation of Spanier for his police interview and grand jury appearance.  It was Baldwin's testimony at the grand jury that became the "lynchpin" of the Conspiracy of Silence case against the PSU Three.

The Unknown

While it's rather easy to point out all of the seemingly dishonest, unethical, and underhanded actions that have been documented on the public record in the Sandusky investigation, one can only imagine what Geoffrey Moulton's investigation is uncovering that is not on the public record.   The recovery of the OAG's e-mail evidence could get rather interesting, considering that Frank Fina attempted to delete all his emails before departing his position there.  Moreover, Acting AG William Ryan's decision to change the e-mail storage policy from two years to six months likely deleted e-mails concerning how the OAG might respond if the FBI stepped in (per request of Dawn Daniels, the mother of Victim 1).  

Also, this passage from Governor Corbett perhaps provides insights on why he believed the Kane investigation should only take a matter of weeks:

“Since she’s the one who wants speed in investigations, I hope that she does this very quickly, because it’s not going to take too long to sit down and talk to everybody and say, ‘Did you ever receive orders? Are there any e-mails?’ There is nothing out there.’ “From the time she walks into office in the middle of January, there’s no reason for her not to complete it, frankly, in about two, three months. Actually, frankly – in about two, three weeks. Because there’s nothing there.”

Unfortunately for Governor Corbett and Frank Fina, what wasn't there in November 2012 is now being recovered by Geoffrey Moulton's team of investigators.