Old Main's Leaks & Confidentiality Smokescreen

In June 2012, Ken Frazier was cheerleading for the expected "leaks" to be featured on the Today Show and when they occurred, Old Main said little.

By
Ray Blehar

In the most recent round of filings over access to the Freeh Source materials, Penn State's legal team, led by William Odea, argued (at 44) hypothetically that confidentiality must be maintained because if a person applied to be President of the University, and the alumni trustees  "leak the information that that person has applied and it undermines them and that's it."

So, they're afraid "leaks" might undermine someone?  Really?

Let's flash back to June 11, 2011....

Frazier: Cheerleader For Leaks
Former Board of Trustee (BOT) member, Ken Frazier, who was the co-chair of the Special Investigations Task Force (SITF) that oversaw the Freeh investigation, was cheerleading for the leaking of grand jury information to the media.   

The email below, obtained by PSU alumnus Ryan Bagwell, shows Frazier's June 11, 2012 communique to SITF co-chair Ron Tomalis the Freeh group alerting them that the emails (gathered in response to a 2011 grand jury subpoena) might be featured on the Today Show.  

How did Frazier know that grand jury information was going to be leaked?  And who was in on the leak?  

The short list includes Old Main, the PA OAG, the Freeh group, and the NCAA.      

Old Main Stays Silent, Masser Condemns 

At the bottom of the email, it's clear that the University did not decry the leaked information, but instead stated "it cannot comment."   Ironically, it went on to state it would "cooperate" to "determine what happened and ensure personal accountability."

So, did Old Main attempt to find out who leaked the information and hold them accountable?

Of course not -- and the reason was that "elephant in the room."

Old Main and the Board needed Freeh's investigation to justify the firings of Spanier and Paterno.  The leaks helped advance their cause.

The next day, Old Main and the Board got the rest of what they were looking for when Tomalis mentioned that an article from the Philadelphia Inquirer "had the Paterno hook."  In other words, it mentioned that Paterno was referenced in the 2001 email.

At the time the emails were leaked, neither former President Graham Spanier nor the late Joe Paterno had been accused criminal conduct.  After the leaks, papers reported that Spanier (and Paterno had he been alive) could be facing criminal charges.  But there were no sentiments from Old Main about either man being "undermined" by the leaks.

Masser: Begged forgiveness for
his unauthorized statement  

Instead, then BOT vice-chair Keith Masser took the opportunity - based on excerpts of emails - to sway the court of public opinion and convict Spanier, among others, of not informing the proper authorities.

"It now appears like top administrative officials and top athletic officials were involved in making the decision to not inform the proper authorities."

 "From a board standpoint it was Judge Freeh's investigation that found these emails that relate Spanier, Curley and Schultz to the suspected cover-up."

Masser faced calls for his resignation over his statement.  PS4RS opined that Masser's  statement could be interpreted as an official position and used against Penn State in a court of law.  In another email, Frazier apparently echoed that sentiment, opining Masser's statement was "unhelpful." 

Masser later retracted his statement and apologized to the Board. 

Selective Undermining 

The engagement letter between the SITF and Freeh stated that the Freeh, Sporkin, and Sullivan (FSS) group would: "immediately report any evidence of criminality to the appropriate law enforcement authorities and provide notice to the Task Force" and  "communicate regarding its independent investigation performed hereunder with media, police agencies, governmental authorities and agencies, and any other parties as directed by the Task Force."

On April 12, 2012, SITF Co-chair Ron Tomalis sent an email to Freeh and Frazier regarding a recent media report that Graham Spanier was to begin employment in a national security position.  Tomalis sarcastically noted that "someone might not have done their homework."

Freeh responded that "we have done our job in notifying federal prosecutors."

Spanier's clearance was revoked as a result of the information passed to the federal government by Freeh.  

Rewind the clock to December 2011 and you'll see that Freeh didn't abide by the engagement letter when it was determined that Cynthia Baldwin was facing charges of contempt.

Lead Sandusky prosecutor, Frank Fina, sent a letter to then-PSU General Counsel Cynthia Baldwin castigating her for failing to comply with a subpoena concerning Sandusky's retirement information, as well as for a "lengthy history of noncompliance."   

Fina stated that the Sandusky retirement information had just been received on December 19, 2011, nearly a full year after it was originally subpoenaed. 

The December 19th letter from Fina set off a chain of emails between Frazier, Tomalis, Omar McNeil of FSS, and PSU hired attorney, Frank Guadagnino regarding what to do about Baldwin.

Frazier, Freeh and Tomalis: Torched
Spanier, but let Baldwin walk away

Frazier: "I just finished speaking with Frank. I explained why I think there are issues with the incumbent [Baldwin].  He agrees.  I believe he will be providing that advice to Surma when they meet tomorrow.

McNeil:  "any further need for Louie to follow up? I trust that Frank got a clear message from you."

Frazier:  "I think I was very direct. After hearing my position he said he was already thinking in a similar direction. No need for Louie to call." 


Frazier's coded language -- "issues with the incumbent" --  was a reference to the OAG's  "intent to pursue contempt" charges against Baldwin.

On January 16th, 2012, the board held a briefing call about "Strategic Issues Moving Forward."  

The next day, Baldwin announced her retirement.  The media reported her retirement was unrelated to the Sandusky scandal.

It's very likely that FSS asked if they needed to intervene or follow-up because Baldwin was not one of the "targets" of their investigation.  When they asked, the SITF told them to stand down. 

Conclusion

As stated in my last post and as above, the elephant in the room regarding the position of Old Main not to allow review of the Freeh Source materials is that it is all about self-interest.

The Board majority voted, without making a single statement to support their position,  to pay out untold millions of dollars to prevent the legal team of Victim 9 from accessing those documents.  

Undoubtedly, the source materials would prove what most people already know -- the Freeh Report's pre-determined conclusions weren't based on any real evidence.  Tampered evidence, maybe, but not real evidence.

Two lawsuits involving the Freeh documents pit the Board majority and Old Main against opponents who won't and can't be bought.

The smokescreen is lifting.

Centre Daily Times Letters to the Editor

Loyal Penn Staters, Wendy Silverwood and Linda Berkland hit the mark with their letters to the editor.

http://www.centredaily.com/2015/09/26/4939218/letter-to-the-editor-give-trustees.html

Letter to the editor: Give trustees access
September 26, 2015

So the argument is that if the alumni trustees have access to Freeh’s raw work product, they might leak details and social media would run with it, thus having a “chilling” effect.

However, Louis Freeh was allowed — by the same entity arguing against the above — to use our national media to carry his leaks across the world.

I queried trustee Kenneth Frazier more than two years ago about the wisdom of allowing Freeh to hold such a grandstanding press conference. I told Frazier that Freeh launched an intercontinental assault on us that day with those satellite trucks. I asked Frazier why that report wasn’t “soft released” instead on the Web for intelligent debate.

Frazier told me there were “no do-overs in life” and proceeded to disparage PS4RS and the Faculty Senate in his response.

So I have to ask — it’s OK for Freeh’s actions to damage reputations, harm families, cause financial disaster for the university and for the livelihoods and the economy surrounding it?

It’s OK for these messages to be carried by our media and harm the greater Penn State community, cause personal property damage, destroy personal and professional relationships and allow sewage about Penn State and her alumni to flow across our social media.

But it’s not OK for the trustees who have a duty of care to the university, to see the raw work product from which this mass destruction emanated.

Alrighty then!

WENDY SILVERWOOD

WEST CHESTER

Read more here: http://www.centredaily.com/2015/09/26/4939218_letter-to-the-editor-give-trustees.html?rh=1#storylink=cpy

http://www.centredaily.com/2015/09/23/4934177/letter-to-the-editor-sanctions.html

Letter to the editor | Sanctions still weigh on PSU
September 23, 2015

Penn State has announced that the athletics integrity monitor — in place as a result of the now repealed, revoked, annulled consent decree — has recommended an early end to his oversight (CDT, Tuesday). In response, President Eric Barron remarked, “It feels good to know that all of those sanctions are now behind us, every single one of them ...”

While Barron lauds the “work” of university administration and the board of trustees to make sure Penn State is “doing it right,” he fails to recognize some issues of critical importance.

First, Penn State was never doing it wrong. I need not summarize the exemplary performance of the athletic department and student-athletes over generations. There have never been any compliance issues and our students graduate at among the highest rates in the country. That has been well-documented.

Second, the athletic department remains saddled with decades of debt to pay out $60 million it should have never been sentenced to pay.

And finally, and of utmost importance to me, Barron fails to acknowledge that the scarlet letter, placed on every single Penn Stater, as football crazed, child rape enablers, remains firmly in place.

Barron can pat himself on the back all day long, but the fact remains that it wasn’t just poor leadership, but absolute nonexistent leadership, that resulted in the sanctions being handed down and the pinning on of the scarlet letter that I continue to wear today. How and when does that sanction get lifted?

LINDA BERKLAND

MARYSVILLE, OHIO

Read more here: http://www.centredaily.com/2015/09/23/4934177/letter-to-the-editor-sanctions.html#storylink=cpy

Read more here: http://www.centredaily.com/2015/09/23/4934177/letter-to-the-editor-sanctions.html#storylink=cpy

Ken, those documents don't say what you think they say

Ken Frazier's defense of the documents used in the Freeh Report to condemn PSU officials, was utterly dishonest and flatly refuted by the evidence contained in the Freeh Report, the Sandusky trial, and, remarkably, the documents themselves!

By
Ray Blehar


"The fact of the matter is, those documents say what they say and no amount of hand waving can ever change what those documents say."  
           -- Kenneth Frazier, March 14, 2013



On March 14, 2013, former Penn State trustee and co-chair of the Special Investigations Task Force (SITF), Kenneth Frazier, angrily defended the Freeh Report during a meeting of the legal and compliance committee.  During his remarks, he made several disparaging remarks, including a racially charged statement referencing the O.J. Simpson trial verdict.

Frazier later attempted to apologize for his outburst to Penn State alumnus, Bill Cluck, however, missed on his first attempt and needed a "do-over." Frazier's advocacy of the Freeh Report continued the next day at the full meeting of the Board of Trustees (BOT).




During a discussion of the validity of the Freeh Report, former trustee Al Clemens pressed the issue of why Penn State had been penalized by the NCAA for the failures of the Pennsylvania Department of Public Welfare and the police to recognize Sandusky as a sex offender in 1998.

Clemens at 3:20:37: The problem here, I think, is that there's a big divide between the alumni and the Board and until...and we all want to move forward...but until we somehow smoke this out a little bit, and in the end, it leads to my favorite thing -- the NCAA because they base everything on '98.

Everything Emmert says as he goes around the country is that if Penn State would have done something about 98 -- well, Penn State wasn't involved in 98.  The Department of Welfare was involved in it, the police were involved in it and you get to the point where, why wasn't the the Department of Welfare - why didn't they monitoring this thing going forward if they were involved in it in 98?

So I think those are some of the questions I would like to ask Louis Freeh?"

Frazier, whose scathing remarks on July 12, 2012 condemned Joe Paterno, Graham Spanier, Gary Schultz, and Tim Curley for their "failure to protect children," summarily excused the individuals paid with Pennsylvania's task dollars to perform that very critical function.  Additionally, his commentary was not reflective of Penn State's commitment to becoming a national leader in the area of child abuse prevention.

Frazier at 3:21:22: "Once again, we did not investigate the Department of Public Welfare or anyone outside Penn State.  Irrespective of whether you think they have a responsibility, that was not within the parameters of the Freeh Report."

The Freeh engagement letter and the Freeh Report disproved Frazier's assertion about the report parameters.

The engagement letter states that Freeh, Sporkin, and Sullivan (FSS) would "perform a full, independent and complete investigation of the recently publicized allegations of the sexual abuse at the facilities and the alleged failure of The Pennsylvania State University ("PSU") personnel to report such sexual abuse to appropriate police and government authorities" and provide a "written report." Undoubtedly, "a full, independent, and complete investigation" of the 1998 incident would include the role of.and decisions by, the DPW.

Moreover, Chapter 2 of the Freeh Report covered many of the 1998 investigative steps taken by DPW and the State College Borough Police, discussed in some detail the recommendations by local psychologist, Dr. Alycia Chambers, and the actions of the Centre County District Attorney's office. Clearly,  Frazier's assertion that DPW "or anyone outside Penn State" was not investigated was flatly refuted by the documents in evidence (e.g., the Freeh Report).


Frazier at 3:21:35:  "The Freeh Report was intended to find the documentation of what happened in 1998. 

First, the assertion that Freeh was "intended to find the documentation" suggests that Frazier was aware the documents from 1998 existed prior to Freeh's hire.  Analysis based on the evidence shows that it is almost certain that the Schultz file and the emails from 1998 and 2001 were recovered prior to April 2011.  The documents were turned over to Freeh.  He didn't find anything.

Frazier at 3:21:43:  And the documentation of what happened in 1998, on the Penn State side is relatively clear in terms of what we thought.

Frazier went on to pluck phrases from the documents and falsely attribute them to the Penn State officials.

Frazier at 3:21:52:  "The documents say for example, that people felt there was inappropriate behavior: "at best inappropriate, at worst sexual improprieties."

At the time of his statement,  Frazier knew that the 1998 investigation conducted by the police and child protective services concluded that "sexual improprieties" did not occur.  In fact, Freeh Report Exhibit 2E, an email dated,  June 9, 1998 clearly states that the police and DPW informed PSU officials "there was no criminal behavior" (i.e., sexual improprieties between Sandusky and the child).

Thus Frazier. as an attorney, obviously knew that his first example of "what Penn State thought" was flatly rejected by the evidence in a report he was steadfastly defending.

A little over one year later, on  July 29, 2013, former University Park police Chief Tom Harmon testified that he made the observation about sexual improprieties as part of the ongoing 1998 investigation.

Harmon at 110:



















Frazier at 3:22:06: "It goes on to say in one place, there had to be genital contact given the size differential."


This phrase was included in the notes from the "Schultz file."  It is clear from the flow of information that this observation was made by either Detective Schreffler or the mother during the May 4th, 1998 interview.

The smartest guy in the room, Frazier, didn't make an honest mistake in misinterpreting this note.  It is clear that Schultz was memorializing the conversation as Harmon spoke to him over the phone.

However, Frazier's dishonesty in stating that Penn State had sufficient reason to believe genital contact occurred was not only refuted by the June 9, 1998 email but by the NOT GUILTY verdict for indent assault charge in the Victim 6 incident.

Having run out of ammunition against PSU officials regarding the 1998 documents, Frazier turned to wrongly attributing the notation on the 2001 billing record of Wendell Courtney to Schultz and then employed the same misinterpretations of the February 2001 emails as did Louis Freeh.

Frazier at 3:22:53: Subsequent emails in which it is absolutely clear that there was a three point plan in how to deal with it, including notifying the Department of Public Welfare.  

First, Frazier, as did Freeh, omitted mentioning the February 12, 2001 document (Freeh Exhibit 2C) that provided the detailed plan written out by Gary Schultz (below).  The plan that Curley would meet with Paterno and then with Sandusky that Friday (Feb. 16th).   A report to DPW was an option if Sandusky did not "confess" to having a problem. There is no mention of reporting the incident to The Second Mile, thus a "three-point" plan didn't exist from the outset.

Freeh Exhibit 2D, an email dated February 26, 2001, contained the three point plan referenced by Frazier, but his characterization that it was agreed upon is untrue, on two counts.   

First, the plain language of the email indicates Schultz was making an assumption that the plan was in effect.

Next, the letter from Graham Spanier (Freeh Report, Exhibit 2J) appears to confirm that it was an assumption because Schultz was not in attendance at the meeting.  Frazier, like Freeh, dismissed this evidence because it didn't fit with the existing narrative (a.k.a., conspiracy theory) of a Penn State cover-up.

Frazier at 3:23:05: Subsequent to that another email saying after discussing it with our late football coach and thinking about it. I'm no longer comfortable...and then a decision made not to do...I'm no longer comfortable, I'm sorry, with what we agreed were the next steps.  And then a decision not to do what was agreed to be the next steps."

The emails spanning February 26 to 27, 2001 (Freeh Report, Exhibit 2F) confirm that Spanier's notes are correct and that Schultz was not a party to the discussion that took place on Sunday afternoon. Additional evidence supporting this is Spanier's greeting at 10:18PM on 2/27/01 that simply says "Tim," -- and not, Tim and Gary.

Moreover, the plan laid out in this email substantially agrees with the plan that was originally discussed on February 12, 2001.  The key point of the plan was that a report to DPW was optional on February 12th and remained optional on February 27th. Curley's message (at 8:10 PM on 2/27) also reflects that he is addressing just Spanier due to the reference to the Sunday meeting.

After he made these dishonest arguments propping up the flimsy evidence, Frazier stated:

"I just think we have to be careful and not go down a rat hole and spin endlessly trying to rewrite history or re-live history.  I think that we are going to have to contend and we are contending in civil contexts and in other contexts, what is clearly the documentation in our files."

The totality of the evidence presented clearly shows that Frazier, as the co-chair of the SITF who oversaw the investigation of FSS and lauded the Freeh Report, dishonestly evaluated the evidence in order to prop up the "reasonable conclusions" that condemned PSU officials.

And it is highly likely he did so because, to do otherwise, would be an admission that the Freeh Report was an $8.5 million dollar failure that wreaked havoc on the University's reputation and caused great financial harm.

The attorneys for the Alumni-elected Trustees spelled out this "elephant in the room" in their most recent arguments for access to the Freeh Source materials.

"Now, Judge,there's an elephant in the room. The elephant in the room is, what's the difference
between the Petitioner Trustees who seek this information and the majority who seeks to block
their access to the information? And under corporate law, there's this notion of interested versus disinterested directors. And I submit to  you that the elephant in the room is that the seven Petitioner Trustees, all of whom came on the Board after Mr. Freeh was engaged, all of whom came on the
Board after the Pennsylvania State University engaged Mr. Freeh and allowed him to issue his report without reviewing it. The seven Trustees are disinterested in the review of the conduct of whether Mr.Freeh performed well or poorly, whether his report is accurate or inaccurate, because they
weren't involved in engaging him. They came on the Board after the report was finished.

That can't be said of all of the majority..."

..or their predecessors, like Ken Frazier and Ron Tomalis -- who know the documents don't say what Freeh and Frazier said they say.

Nifonged Part 3: Freeh "Exposed" Fina's Other Email Problem

When then-Governor Tom Corbett recommended Louis Freeh to conduct the investigation at Penn State, little did he know that the Freeh Report would provide key evidence that helped unveil Fina's email deception.  

By

Ray Blehar

Parts 1 and 2 of the series identified critical facts and evidence (indicating misconduct) that surfaced after Frank Fina's "flip" strategy failed.   Part 3  identifies the information contained in the Freeh Report that revealed Fina and Baldwin misrepresented evidence before the court.

Corbett Endorsed Freeh

Shortly after Penn State announced that it hired Louis Freeh, then-Governor Tom Corbett opined that Freeh was the right man for the job.

"And I think one of the reasons that someone like Mr. Freeh was appointed is because he understands the role of a grand jury investigation, the role of the prosecutors and will work well with the attorney general's office and Attorney General Linda Kelly so that [obstruction of the attorney general's investigation] does not happen."
 

Emails obtained by PSU alumnus Ryan Bagwell clearly show that Freeh's team and the prosecution worked together....but to say that Freeh and AG partnership would "work well" turned out to be wishful thinking.

On July 12, 2012, Louis Freeh's press conference left little doubt in the public's mind -- and much to Corbett's liking -- that there was a Penn State cover up involving Graham Spanier.  Later that day, the man who had taken credit for the firing of Joe Paterno, took to the microphone to take credit for recommending Freeh (at :58). 

"The hiring of Louis Freeh...which I certainly encouraged...in fact, I provided his name..." 

Corbett then rambled on and indicated that obstruction of justice charges may be in store for PSU officials (at 1:20): 


"The prior administration, they made decisions on how they would deliver and what they would deliver...and I'm sure that is the subject of much discussion on the sixteenth floor of Strawberry Square." 

And (at 2:44): 

"Prior people who were in control; now if I limit it to that, I am very disappointed in the lack of forthcoming evidence to the subpoena that was given to them by the attorney general's office."

Freeh overlooked game changing information that
 his team -wittingly or unwittingly - left behind.

Louis Freeh likely relished the opportunity to take credit for "discovering" the evidence that he alleged PSU officials sought to "conceal" from the authorities. 

Given Freeh's alleged impeccable reputation, everyone assumed he was truthful and that the supporting evidence backing up his statements would be in his report.  It wasn't.  


Then Governor Tom Corbett was among those who promoted the report, when (at :25) he stated to "the extent he had read it so far, I think is pretty thorough report."  

Had Corbett read it all the way to the very back, he would have realized the Freeh Report was obviously incomplete by virtue of the five missing exhibits (i.e., #s 1, 4, 7, 8, & 9).  He also likely would have realized that some other exhibits (exposing the Commonwealth's 1998 failure) that should have been excluded or at least redacted, remained in the report.  

It is apparent that Freeh's team, wittingly or unwittingly, left several references in place that exposed potentially "game changing" information regarding the 1998 and 2001 incidents. 

However, the evidence of Fina's email deception was the reference to Subpoena 109.

The Key Evidence: Subpoena 109 

According to the Freeh Report at 88, "the investigators had subpoenaed all emails dating back to 1997 for Spanier, Schultz, Paterno and Curley."   This passage was sourced to end note 457: Grand Jury Subpoena 109, issued on March 24, 2011. 

Note: Former PSU police chief Tom Harmon was also among the individuals targeted by Subpoena 109.  Fina made reference to the alteration of the 1998 police report during his in-camera argument on April 13, 2011.

At the April 13, 2011 grand jury, then PSU Counsel Cynthia Baldwin (at 5) told Judge Feudale that Penn State had been "cooperating all the way through" and did not feel she needed to make a motion to quash the subpoena.  She also stated that the University was working to gather all the requested information.

PSU SOS employee John Corro testified that he was shown some language from the a subpoena in March 2011 and he delivered three USB drives of information to Baldwin in April 2011.  

According to Spanier's July 2012 letter to the Board of Trustees, Baldwin provided a thumb drive his emails - dating back to 2004 - to Judge Feudale at his April 13 appearance.  It is more likely, as I will explain, that the thumb drive contained all of the PSU emails and that a "culled" set had already been provided to the OAG.

The in-camera arguments (for pre-1997 emails) made by OAG prosecutors Fina and Eshbach at the April 13th proceeding revealed they had already received 1998 and 2001 emails -- that would eventually wind up as the "critical evidence" in the Freeh Report.

Fina, Eshbach, and Masked Comments

During former PSU President Graham Spanier's grand jury colloquy,  Frank Fina and Jonelle Eshbach made four different references about emails containing masked comments, metaphors, and other information alluding to Sandusky's crimes on campus.  There was no mention to look for this type of information in documents requested by Subpoena 1179, thus it was not a "routine" request.  In other words, Fina and Eshbach were making the following arguments/requests based emails they already possessed.


1. Fina at 15:

2. & 3. Fina and Eshbach at 20:

4.  Fina at 26:

Fina referenced an alleged 1984 incident involving Sandusky - of which there was no police report or other supporting evidence -- to make the case for the (retroactive) subpoena requiring PSU to search for emails prior to 1997.   

Feudale and Pre-1997 Order

Baldwin, who was excused from the judges chambers during Fina's and Eshbach's in-camera arguments, re-entered and was informed that Fina laid the proper grounds to justify the subpoena for emails prior to 1997. 

Feudale ordered Baldwin to provide the full set of emails, dating "from 1997 back" to him, and a culled set containing just emails related to Sandusky to the OAG.   

Timeline: Freeh & Baldwin Exposed The Deception

Dec 29, 2010:  Subpoena 1179 for Sandusky information related to 2002 incident.


Jan 10, 2011:  PSU turned over handful of materials (likely including "Schultz" file).

Mar 22, 2011: Spanier interviewed by Fina, Eshbach, Rossman, and Sassano.

Mar 24, 2011: Subpoena 109 for emails from 1997 to the present. No motion to quash.

Apr 11, 2011: Due date for emails re: Subpoena 109.

Apr 13, 2011: Baldwin turned over thumb drive to Feudale.  

Apr 13, 2011: Judge Feudale agreed to write order for emails prior to 1997.

Apr 13, 2011: Baldwin promised to turn over all emails by April 15th.

At the outset of the April 13th grand jury, Baldwin explained that PSU had been cooperating with the subpoena but was having difficulty obtaining the emails because the University's administrative computer networks were not centralized.  She also argued (at 5) that the request for emails from 1997 to the present was "much too broad."  

It strains credulity that - in the face of the new, expanded requirement for all emails prior to 1997-  Baldwin would commit to turning around the information in just two days.  Not only did approximately 15 years of email have to be recovered and searched, but it had to be combed through for "metaphors" and possible "allusions" to Sandusky.  Yet all of this would be completed in two days -- according to Baldwin.

Baldwin (at 27) exposed the ex post facto argument for the pre-1997 data when she stated that PSU's IT people were already working to gather and cull out the emails.

The Clincher:  A USB Drive 

While Baldwin's promise to deliver emails in two days was quite incredible, the clincher that the emails had already been gathered was her statement that they would all fit on a single USB drive.

How could Baldwin, who probably knows less about IT than she does about education law (and that says a lot), have known all of the data would fit on a single USB drive?  The answer is she knew they would fit on a USB because she already had it in her possession.   

This also lends credence to the scenario that Dr. Spanier didn't see her turning over his emails to Feudale -- he saw her turn over all the emails to Feudale.   Baldwin and Fina talked their way around that fact at her grand jury appearance in October 2012.  


The evidence presented reveals that Baldwin, Fina, and Esbach were all in on the email deception --  and the railroading of PSU officials.

Fina vs. Nifong

Durham County DA was disbarred, in part, for misrepresenting evidence before the court in the Duke lacrosse case.  Specifically, Nifong falsely represented to the Court that he had turned over the complete DNA reports and other evidence (when he had not).  He was found to have made false statements of material fact or law to a tribunal in violation of Rule 3.3(a)(1),  and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c) of the Revised Rules of Professional Conduct.


In this case, Fina (and Baldwin) likely made numerous misrepresentations and engaged in conduct involving dishonesty and deceit when they pretended that the email evidence related to Subpoena 109 and emails related to the pre-1997 order had yet to be gathered.  It is also likely Fina fabricated the existence of a 1984 incident as a means to justify the search for pre-1997 emails.  The duo of Fina and Baldwin also engaged in similar conduct at Baldwin's grand jury appearance when they talked their way around Baldwin's provision of Spanier's emails to Feudale on April 13, 2011.  See below.

The document excerpt on the left is from the April 13th grand jury, when Fina instructed Baldwin to hand over the complete set of emails to Judge Fuedale.  The document excerpt on the right reflects Fina grand jury questioning Baldwin, implying she didn't hand over emails to the judge.  Baldwin's answer utilizes two technicalities to deny she handed over Spanier's emails. 

1. The thumb drive contained ALL the emails, not just Spanier's.
2. Subpoena 109 and the subsequent order required emails prior to and after 2004.

While she did not commit perjury, her answer was indeed deceptive -- and Fina knew it.

Conclusion

The narrative of a Penn State cover-up was a very poorly executed deception that was attempted by a bunch of amateurs.  Those amateurs included Tom Corbett, Linda Kelly, Frank Fina, Barry Feudale, Jonelle Eshbach, Cynthia Baldwin, and a cub reporter at the Harrisburg Patriot News. 

The flaws in the November 4th 2011 grand jury presentment and in the Patriot News' subsequent Pulitzer Prize winning reporting were rather obvious from the outset. Those flaws were further exposed by the evidence contained in the Freeh Report (and subsequent legal proceedings).  

The Freeh Report was expected to be the definitive account on Penn State's role in the Sandusky case and the emails were supposed to be the evidence proving a cover-up by top PSU officials -- including Joe Paterno.

Instead, the Freeh Report provided the critical piece of evidence that helped to unveil the Commonwealth's and Fina's email deception. 

It's clear that Frank Fina's problems with email aren't just with "Porngate."