Friday, February 21

Fina & Baldwin Are Just the Beginning

The decisions to suspend Frank Fina's law license and to publicly reprimand Cynthia Baldwin are  just the beginning of a long line of disciplinary actions to come against current and former OAG officials

By
Ray Blehar
Feb 21, 2020. 9:27 PM EST, Updated Feb 23 at 11:04 AM EST

Image result for Fina Baldwin punishedOn February 20th, the Supreme Court meted out some long overdue punishment for former Penn State University (PSU) General Counsel Cynthia Baldwin and former Deputy Attorney General (DAG) prosecutor Frank Fina.   

Fina will lose his law license for one year and one day, which forces him to reapply for a license.  

Baldwin will be publicly scolded on April 21 at 10 AM at 819 City County Building at 414 Grant Street in Pittsburgh.




Neither Baldwin nor Fina expressed any remorse over their misconduct.  Fina's attorney, Joe McGettigan, vowed to take the matter to the U.S. Supreme Court.

Aside from the discipline, the most significant feature of  Fina's ruling was its language that gives rise for filing additional complaints against the cabal of corrupt prosecutors who handled the cases of Penn State officials. 

 Justice Wecht wrote (my emphasis added):

"The hearing Committee concluded that, because Fina's name was not listed on the subpeona issued to Baldwin, Fina had not committed the threshold act of subpoenaing an attorney.....The Disciplinary Board, however, rejected the committee's interpretation of Rule 3.10.  Instead the Board stated that the reference to "a public prosecutor" in the Rule encompassed the OAG as the prosecuting body."

And:

"Turning to the conduct that led to this disciplinary action, I emphasize that the prosecutor has a special and distinctive role in our system of justice. Unlike other lawyers, the prosecutor is more than a zealous advocated for a client.  The prosecutor bears as well the high and non-delegable duty of ensuring a fair process for the defendant and of comporting himself or herself always in a manner consistent with the position of public trust."

And:


"As an officer of the court, the prosecutor has the responsibility to serve the public interest to 'seek justice within the bounds of the law, not merely to convict..."

OAG prosecutors Fina, Jonelle Eshbach, Patrick Schulte, and Bruce Beemer were complicit in undermining a fair process for the PSU defendants and undermining confidence in the justice system.  AG Josh Shapiro also should be held accountable for his failure to ensure that Schulte and Laura Ditka (now deceased) comported themselves within the Rules of Professional Conduct at the trial of former PSU President Graham Spanier.

At a minimum, Eshbach withheld potentially exculpatory information (i.e., a November 2011 email) regarding the credibility of witness Mike McQueary (see Pa.R.P.C. 3.4.b.).

Schulte knowingly elicited false testimony from the John Doe witness during the Spanier case when he allowed that Doe was sexually assaulted by Jerry Sandusky  (see Pa.R.P.C. 3.4.b.).  The court records from the Sandusky case prove that Doe was not sexually assaulted nor indecently assaulted.

Beemer obfuscated the actual dates of the recovery of the PSU emails and the Schultz file used as evidence in the conviction of Spanier (see Pa.R.P.C. 3.3).   Beemer, et al, also failed to correct the record when Louis Freeh claimed to discover the emails.

Finally, AG Josh Shapiro, who is famous for saying "no one is above the law," should also face disciplinary action because he made numerous misstatements of fact in his public response to Spanier's conviction being vacated.  Shapiro celebrated the conviction of Spanier along with prosecutors Schulte and Laura Ditka (now deceased).  However, Shapiro had a supervisory duty to ensure the prosecutors complied with the RPC -- and evidence shows they didn't (see Pa.R.P.C. 5.1.b.).

The punishments of Baldwin and Fina were long-awaited victories for the Penn State alumni who filed the complaints and for all Penn Staters who won't be satisfied until the University's reputation is restored and justice is served.

7 comments:

  1. Is Fina's law license suspension put on hold if he appeals to SCOTUS? It seems like it is a very long shot for SCOTUS to take such a minor case.

    Is there any statute of limitations for filing additional complaints against Fina and the rest?

    Too bad the news media didn't quote more from the actual decisions. There is a lot of juicy stuff there. They both got hammered.

    Fina decision:
    http://www.pacourts.us/assets/opinions/DisciplinaryBoard/out/166DB2017-Fina.pdf

    Baldwin decision:
    http://www.pacourts.us/assets/opinions/DisciplinaryBoard/out/151DB2017-Baldwin.pdf

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    Replies
    1. Tim,
      Thanks for your comments and questions.

      The PA Disciplinary Board website does not make any references to statutes of limitations. Based on what just took place, Fina and Baldwin were disciplined for a complaint lodged in 2016 over their misdeeds five years earlier (in 2011).

      The January 2016 complaint arose from a judicial ruling that same month that exposed their misdeeds.

      http://notpsu.blogspot.com/2016/02/wendy-silverwood-files-complaint-aganst.html

      The aforementioned situation suggests that a complaint can be filed for prior acts as evidence becomes available. In the case of Spanier, the McChesney diary provides ample new evidence of misdeeds -- including that Fina was providing secret grand jury information to Freeh.

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    2. Tim,
      I don't see a Constitutional basis for Fina's case to be heard before the U.S. Supreme Court, but I'm not an attorney. The only thing I can think of off the top of my head is that he didn't have the opportunity to face his accusers (those who complained). That said, the complaints were based on court records that speak for themselves.

      BTW, Fina called the complaint "fiction."

      http://web.archive.org/save/https://www.inquirer.com/philly/news/breaking/former-state-prosecutor-defends-his-probe-of-penn-state-administrators-fina-sandusky-spanier-20180727.html

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    3. Thanks for the reply. The McChesney diary provides evidence of crimes so that would require Shapiro or maybe a DA to get involved. I doubt that will happen or Shapiro would have alredy given a press conference announcing how he was outraged that grand jury secrecy was compromised and would get to the bottom of it.

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    4. Ray, Are you going to do an article on the Paterno settlement with Penn State? It is very murky from news reports what exactly that is all about. I thought the only one suing Penn State yet was Jay Paterno yet Sue Paterno seemed like the plaintiff.

      Given the secrecy, it's hard to tell if the settlement was a win for Penn State or the Paternos. Looks like maybe Penn State got the better deal because they got a NDA from the Paterno family all for an undisclosed settlement and a very weak repudiation of the Freeh Report.

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    5. Tim,
      I don't plan to write about the Paterno's settlement with the University. I'm happy that they are satisfied and can move forward.

      That said, the settlement has no bearing on my work and I will continue to expose the truth about the scandal.

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