"Nifonged" Part 2: The Real Conspiracy of Silence

According to the Moulton Report, "the Penn State state emails" were turned over by July 7, 2011, proving a key obstruction of justice allegation was false and that Fina suppressed this evidence to charge Curley and Schultz with failure to report.   

By

Ray Blehar

In Part 1 of the series, the evidence indicated that Frank Fina's expectation that Curley and Schultz would "flip" was among the reasons behind his use of unreliable evidence.  Fina's reliance in pressing charges on flimsy evidence was much worse than that of Durham DA Mike Nifong, who was eventually disbarred over his misconduct in the Duke lacrosse case. In Part 2, the Moulton Report and a lot of other evidence reveal the misconduct on the part of Fina and then-Penn State Counsel Cynthia Baldwin during the Sandusky investigation -- in the lead up to the eventual Conspiracy of Silence case.

On November 1, 2012, the Conspiracy of Silence  (CoS) presentment levied allegations of obstruction justice against Graham Spanier, Gary Schultz, and Tim Curley.  While a long list of allegations were included in the presentment, many of which were not crimes, the key allegation of obstruction of justice was the lack of compliance with Subpoena 1179.

GJ Subpoena 1179 (Sandusky case), issued on December 29, 2010 requested:  

"Any and all records pertaining to Jerry Sandusky and incidents reported to have occurred on or about March 2002, and any other information concerning Jerry Sandusky and inappropriate contact with underage males both on and off University property. Response shall include any and all correspondence directed to or regarding Jerry Sandusky."

That allegation was blown away by the Moulton Report's timeline, specifically:

"July 7, 2011. Tpr. Rossman receives a thumb drive containing Penn State emails."

Trooper Scott Rossman and OAG Agent Anthony Sassano were the two investigators assigned to the case in July 2011.  Obviously, Rossman's receipt of the Penn State emails proves the charge of a "total lack of compliance" was false. 

Additionally, the notebook of former PSU President Rodney Erickson appears to confirm that Penn State had Schultz's notes by at least January 31, 2012 -- a little under a year before the obstruction charges were filed.

The analysis performed by Eileen Morgan made a very strong case that Penn State provided the OAG with the Schultz file in early January 2011 and that Fina utilized it in the grand jury examinations of Curley and Schultz.

However, the falsity of the obstruction charges doesn't stop there.  Not by a long-shot.

Smoke and Mirrors

PSU Policy AD49, effective July 19, 2010, clearly states that the General Counsel (Baldwin) was responsible for answering subpoenas: 

"LEGAL DOCUMENTS INCLUDING SUBPOENAS:

Baldwin "stonewalled" the PSU Three

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."

The entire obstruction of justice and criminal conspiracy ruse is based on the assumption that Baldwin followed through on her responsibilities.  

Baldwin's grand jury testimony (pages 16-21) was clear that she met with each man one-on-one to discuss the subpoena.  

The evidence tells a different story.

Baldwin not only stonewalled the PSU Three about the subpoena, but of all of her knowledge of the evidence relevant to the Sandusky case.  

The Baldwin Stonewall

1998 Incident:  According to the Freeh Report (page 83), Baldwin obtained a copy of the 1998 police report on January 4, 2011.  Based on the consistent lack of recall of the 1998 incident by Paterno, Curley, and Schultz, it is quite obvious she didn't share the report to help prepare them for their appearance. Similarly, Spanier recalled almost nothing about the 1998 incident when he appeared at the grand jury in April 2011. 

2002 Incident:  Subpoena 1179 clearly identified 2002 as the date of the McQueary incident, but when under questioning at their pre-grand jury interviews, neither Curley nor Schultz got the date correct. Curley guessed 2000, while Schultz believed the incident was in 2003.  At Spanier's April 2011 grand jury appearance, he correctly stated 2002, although he said he wasn't sure of the date, but recalled it was about three years after Sandusky retired.

Subpoena 1179:  Baldwin did not advise Penn State officials of their responsibility to search for materials relevant to the subpoena.

Curley: According to Curley's omnibus pre-trial motion, he twice met with Baldwin, once at the Outback Bowl in Tampa, Florida (prior to the issuance of the subpoena) and once in State College, Pennsylvania to discuss his appearance at the grand jury.  Curley's motion makes no mention that Baldwin advised him to search for materials responsive to the subpoena.  

Paterno:  Scott Paterno, son of legendary coach, Joe Paterno, stated that Baldwin resisted providing him with his father's subpoena to testify and didn't provide it until April 2011.  He also stated that Baldwin never asked his father to search for any documents.  The Paterno family later volunteered numerous documents regarding Sandusky to assist in the Freeh investigation.  

Schultz: According to Schultz's omnibus pretrial motion, in December 2010, Baldwin informed him that he was subpoenaed to testify before the grand jury in January 2011.  Schultz agreed to let Baldwin accept service of the subpoena on his behalf. Schultz's affidavit made no mention of Baldwin informing him to search for Sandusky related materials. 

Spanier:  According to Graham Spanier's New Yorker interview, he was not told to search for documents by Baldwin.  

"In that period from January, February, March, she [Baldwin] only gave me a report that these folks are going to the grand jury. She told me somewhere along the way that they were interviewing staff in the football program, and she would be there for all the interviews. But she never told me what was asked about in the interviews, never told me what came up with Curley and Gary Schultz in their testimony."


Motions To Quash: Baldwin never filed a motion to quash the Subpoena 1179 nor did she make any other formal appeal to the OAG for relief.  As such, the OAG was likely expecting many documents to be produced. 

According to the presentment, PSU had only turned over a handful of documents prior to the testimony of Curley, Schultz, and Paterno.

In consideration of the evidence above, Baldwin was either a completely incompetent attorney or she was intentionally undercutting PSU officials.  The circumstances of her hiring appears to point to the latter.

But what do Baldwin's follies have to do with Frank Fina? 

Unwitting Targets

During the January 2011 grand jury, Sandusky case prosecutors Eshbach and Fina didn't ask Curley, Schultz, and Paterno if they were informed about Subpoena 1179 or if they conducted searches to find relevant information. 

Fina: No questions about Subpoena 1179  

Given the allegation that Penn State had turned over just a handful of documents just TWO DAYS before the testimony of PSU officials,  it strains credulity that Fina and Eshbach didn't ask anyone a question about that subpoena or any questions at all about searching for documents related to Sandusky.  The only person asked about documents was Schultz, likely because Baldwin had already passed his notes to them.

Based on the evidence, it is almost certain that the Commonwealth knew Baldwin had not informed Curley, Schultz, and Paterno about their responsibilities to gather information in response to Subpoena 1179. 

This is not a case about a bunch of incompetent lawyers, but more likely a case of Fina, Eshbach, and Baldwin collaborating to extract sworn testimony from Penn State officials who had no idea they were targets of the Sandusky investigation.  

More Lies About Emails

Page 23 of the presentment alleges that Penn State did not use its established procedures or personnel to conduct the searches for emails.  The allegations (below) are false, as # 3 and #4 were disproved by the testimony of Penn State employee, John Corro, who works for Security Operations and Services (SOS).

On July 29, 2013, Corro testified (on page 89 and 90) that in April 2011, he recovered the emails based on the searches for Curley, Schultz, and Spanier, then provided them to Baldwin (page 91).  

Corro further elaborated (pages 91 and 92) that he provided three USB keys to Baldwin, one which contained the entire set of emails and two that were of specific searches. 

When asked if he saw Subpoena 1179, like the others, Corro stated had not. He had only seen a few lines of it as part of another document,  but understood that he was searching for information related to the Sandusky investigation.

According to the agreement made at the Spanier GJ colloquy on April 13, 2011, Penn State was ordered to provide the entire history of emails from PSU officials dating back the University's implementation of email (i.e., prior to 1997) for Spanier, Curley, Schultz, and Paterno.   

Due to the system cut-over in 2004, the search for emails responsive to Subpoena 1179 (citing 2002)  required Penn State to access the archived files where Gary Schultz's 1998 and 2001 email files were located.  Corro didn't testify to any issues with accessing the archived files.

Penn State was to provide the full set - everything found -  to the grand jury judge and then a "culled set" specifically related to Sandusky to the OAG. 

Baldwin agreed to provide everything by April 15, 2011.  

No evidence to date identifies the exact date on which Baldwin provided the USB keys to the grand jury judge and/or the OAG, however, the testimony of Corro, and statements by Fina and Eshbach reveal that all of the 1998 and 2001 the emails were in the OAG's possession by April 2011. 

As for Louis Freeh's alleged discovery of the 1998 and 2001 emails...the evidence reveals that it didn't happen.

Summary of Evidence

The bottom line is that Fina, et al, knew that Penn State had indeed used the SOS to gather materials responsive to Subpoena 1179 and that Spanier, Curley, and Schultz were not guilty of obstructing the investigation by failing to turn over information.  To wit:

1. Schultz was retired from Penn State when Subpoena 1179 was served and had no access to the Sandusky file in his old office or to his 1998 and 2001 (archived) emails. According to an affidavit filed by Schultz, he informed Baldwin of the possible existence of the Sandusky file.  Any failure to provide those materials was because of Baldwin, not Schultz. 

2. Spanier did not possess materials responsive to the subpoena. 

3. There has been no evidence provided to date, aside from a reference in Erickson's notebook, that Curley possessed any evidence responsive to the subpoena.

The only other conspiracy to obstruct justice charge is wholly dependent upon the Commonwealth's legally impossible task of proving that Mike McQueary informed Curley and Schultz that a crime was being committed.  

In other words, the Commonwealth has nothing.

And let's face it, if there was any material/inculpatory evidence to be found, Louie Freeh would have put in his report.

Fina vs. Nifong

One of the reasons Durham County DA Mike Nifong was disbarred was for failure to disclose evidence that negated the guilt of the defendants.  Nifong failed to provide the complete results of the DNA tests that concluded two of the three defendants were not involved in the alleged rape of Crystal Mangum and made numerous misrepresentations about the nature of the evidence before the court.  The withholding of evidence was in violation of former Rule 3.8(d) of the Revised Rules of Professional Conduct.  The misrepresentations were in violation of Rule 8.4 (c). 

Fina's case is a bit different than Nifong's, however the same rules of conduct apply.

The fact that the Penn State emails were in the Commonwealth's possession by at least July 2011 (if not April 2011)  is proof that the Commonwealth knowingly lied about Penn State's failure to comply with Subpoena 1179. 

Given that the emails (and the Schultz file) included the date of the 2001 incident witnessed by McQueary, the evidence also proves that Fina, et al, purposely misstated the year of the McQueary incident in order to charge Curley and Schultz with failure to report in November 2011. 

The Sandusky prosecution team of Fina and Eshbach filed numerous documents with the court misrepresenting the date of the Victim 2 incident as March 1, 2002.  It was not until May 7, 2012 that Fina and McGettigan's Motion to Amend the Bill of Particulars to provided the correct date of February 9, 2001.

The evidence shows that Fina, et al, made numerous misrepresentations to the court during the Sandusky proceedings, in initially charging Curley and Schultz, and during Baldwin's grand jury testimony in October 2012.

Conclusion

The evidence regarding Penn State's provision of the email evidence is exactly the type of information that Frank Fina and his cohorts likely feared would be exposed when their "flip" strategy failed.  

While Moulton's investigation didn't highlight it, there is little doubt that his investigative team uncovered the email ruse.  If not for the toxic politics of the Sandusky case -- and the pre-emptive strike by Fina -- AG Kane might have already went public about Fina's deception.

No doubt, there was a "conspiracy of silence" related to the Sandusky case, but not by the people accused of it.


Next: Freeh "Fail"

Fina Feared Being "Nifonged" By Kane (Part 1)

Attorney General Kane stated the emails in the "porngate" prompted Fina's attack on her, however, Fina also feared that Moulton's investigation could cause him to be disbarred.  

By

Ray Blehar

At her press conference, Attorney General Kathleen Kane stated that she broke no laws and that the court system and subsequent charges were being used as a "stealth weapon" to discredit and silence her.

Sound familiar?

In November 2011, former AG Linda Kelly and her lead prosecutor, Frank Fina used the same tactics to silence and discredit PSU officials Timothy Curley and Gary Schultz -- falsely charging them with failure to report and perjury.  Had they not been charged, their accounts of the 2001 incident could have been used to impeach the testimony of Mike McQueary during the Sandusky trial.

Don't take my word for it, though.

Sandusky trial Judge John Cleland mentioned that the Curley and Schultz charges could have been used as a means to "hamstring the defense" (see page 169).   Judge Cleland then went on to caution Fina about using the email evidence and Schultz file for the Sandusky prosecution, stating it might "risk your case against Curley and Schultz."  

Unbelievably, prosecutor McGettigan replied, "but we're not going to try that case."

What was going on?

The notes of former PSU President Rod Erickson (below) confirm that on or about January 2012, the OAG was keeping Old Main informed of the ongoing grand jury investigations of Sandusky, Curley, Schultz, and Spanier.   The amount of information shared by the OAG was far more than current AG Kathleen Kane allegedly shared with the Philadelphia Inquirer. 

But the most important fact contained in the notes was that Fina shared his case strategy with Old Main.  Specifically, that he "expected" Curley and Schultz "to flip"(on Spanier). 

Fina's "flip" strategy is at the root of the misconduct in the Conspiracy of Silence (CoS) case.    If the flip had happened, Fina would have made the case against Spanier on the testimony of Curley and/or Schultz -- and very likely, Cynthia Baldwin.  Securing a plea deal would have likely ensured that Fina's ethical violations would have remained hidden.    

When the flip didn't happen -- and Kane was elected on her promise to investigate the Sandusky investigation -- Fina looked in the mirror and saw Mike Nifong.

The PSU Case Is Duke Lacrosse on Steroids

Fina and Nifong: Mirror misconduct?

Former DA Mike Nifong was disbarred over the Duke lacrosse case, in which he filed charges based on the inconsistent and unsupported testimony of the key witness, suppressed exculpatory and other relevant evidence, used questionable evidence, and made highly prejudicial statements in the press.

The North Carolina State Bar Committee called the case a "fiasco" and said Nifong's actions involved "dishonesty, fraud, deceit, and misrepresentation."


Frank Fina's actions related to the CoS case were remarkably similar to Nifong's, however the stakes in the were much higher in Pennsylvania than they were in North Carolina.  Nifong was using the Duke rape allegations to revive his struggling election campaign.  

Fina used McQueary's dubious rape story to paint PSU officials as enablers of Sandusky's abuse. The goal, likely set by his boss, Tom Corbett, was to scapegoat Spanier for directing Curley and Schultz not to report the incident.  The abuse of grand jury secrecy rules in leaking the presentment (and other evidence) was done to deflect attention away from the Commonwealth's child protective services (and the state police's) failures to protect children from Sandusky.  Had the truth gotten out, the Commonwealth (e.g., Centre County CYS) likely would have been facing lawsuits -- not Penn State.

McQueary Gave "More Vivid" Description in 2010

It is a matter of public record that McQueary's testimony and public statements about the 2001 incident have been consistently inconsistent.  

What is not on the public record - until now - is that Erickson notes confirm that McQueary gave a "more vivid" description to "Detectives - ten years later" than he did in 2001.  The notes also reveal the tortured reasoning by prosecutors to use McQueary's unreliable and unsupported testimony to charge PSU officials.

Lines 1-5:  McQueary denied seeing anything sexual to Dr. Dranov.

Lines 6-7: McQueary lied to Dranov and his father about what he saw. 

Lines 8-9:  Dr. Dranov's, Curley's, and Schultz's stories seem "same."

Lines 10-11: McQueary told different version to Curley and Schultz than he did to Dranov and his father.

Lines 17-21:  When questioned "by police.. Detectives - 10 years later," McQueary gave "more vivid" version "than before." 

It appears that lead prosecutor Fina was pulling a Nifong when he charged Curley and Schultz with failure to report and perjury and then approved a grand jury presentment that stated McQueary was an "extremely credible" witness.  

Fina also had to ignore physical evidence to believe McQueary's story.

The Obstruction in the Shower

Based on the description of the incident provided by Dr. Dranov and the physical properties of the locker room, it is highly probable that McQueary did not see Sandusky and the boy while they in the showers.   According to the notes, the "kid looked out from behind the obstruction." "Other three behind" refers to the number of shower heads that would be positioned behind the victim.

There is only one obstruction to the victim could have looked out from behind if McQueary was viewing the incident through the mirror (as shown below) and it is on the "far right" looking out of the shower. 

If the victim and Sandusky were positioned in that location, they would have been out of the "line of sight" of McQueary. 

Lines 20-21:  "kid looked out from behind the obstruction."

Lines 22-23:  "Actually far right, other 3 behind"   "line of sight"

While I believe that McQueary heard slapping sounds and saw Sandusky and a minor youth exit the shower, the physical properties of the locker room made it impossible for him to see in and observe contact.  I also believe Fina knew that to be the situation, but didn't let that evidence stand in the way of his prosecution of PSU officials.  The janitor incident is germane.

Spanier's version

Graham Spanier's grand jury testimony also was the same as Curley and Schultz's -- as it should have been because they informed him of the incident.  

The former PSU President testified (page 14) that "they were horsing around in the shower. I believe that was the language that was used."  When Fina (page 24) asked if it was possible the report was "sexual in nature," Spanier (page 25) responded, "No... what was reported was not a report of any activity that was sexual in nature."

Once again, another individual testified to not being informed of anything sexual being reported about the 2001 incident.  For those keeping score at home, that was five people, including Mike's father, who testified that explicit details were not shared by Mike. 

Fina would eventually charge three of the five with perjury, even though there was no corroboration of Mike's account.

Conclusion
When Duke accuser Crystal Mangum changed her story and was no longer certain she was raped, Nifong dropped the rape charges.  

Conversely, Fina continued to press forward with the perjury and failure to report charges even though detectives believed McQueary gave a more vivid description in 2010 than he did in 2001. 

Weighing the evidence so far, it appears that Fina's conduct related to the CoS case was more unethical than Mike Nifong's at Duke.  But this is just the beginning of the story.

Next: Part 2: Evidence Suppression