Morgan: OAG Had Schultz File in January 2011

The contents of the (original) Schultz's "secret file" may be the reason PSU is fighting the release of the Freeh source materials..

by

Eileen Morgan

For three and a half years now, former Penn State officials have been awaiting their day in court.  As most following this story are aware, Tim Curley, Gary Schultz and Graham Spanier have been criminally charged for their alleged roles in the Jerry Sandusky scandal. 

The Freeh Report and the Pennsylvania Office of Attorney General (OAG) have convinced most of the world that:

1) Gary Schultz obstructed justice by hiding a ‘secret file’, which contained information on the 1998 & 2001 incidents involving Jerry Sandusky and young boys, that he kept hidden from authorities, 

2) Louis Freeh ‘discovered’ this ‘secret file’ and other emails which became the smoking gun allegedly ‘proving’ that Curley, Schultz, & Spanier, along with Joe Paterno were involved in an elaborate cover-up that allowed Sandusky to molest children for 14 years.

The evidence, however, seems to prove that Schultz actually made this Sandusky file known to authorities, but those authorities – Cynthia Baldwin and the OAG - are the very ones who kept the file a secret until it was safe for Louis Freeh to ‘discover’ it.

CHARGES

On November 4, 2011, Gary Schultz and Tim Curley were charged with Perjury and Failure to Report in connection with the Sandusky scandal.  About a year later, more charges were added and Graham Spanier was also indicted.  Note that the initial Failure to Report charge has a statute of limitations of 10 years.

Let’s start with the original charges filed in November 2011-Perjury and Failure to Report.  Analyzing the two charges we find that:

1) Perjury was based only on Curley and Schultz's testimony that they were not told of sexual abuse by McQueary; and,

2) Failure to Report would have had to occur on or after November 5, 2001 to keep within the 10 year statute of limitations.

Perjury is:

1.       A false statement.

2.       On a material issue.

3.       Made willfully and with knowledge that it was false.

4.       Under oath.

5.       Before an authorized tribunal, officer, or person.

According to the Grand Jury Presentment, the only basis presented for perjury was that the Grand Jury found Mike McQueary’s testimony to be ‘extremely credible’ and found ‘portions of the testimony of Curley and Schultz not to be credible.’  

But is one witness’s word against another witness’s word enough evidence to file perjury charges?

According to defense attorneys for Curley and Schultz, perjury has to be ‘more than a he said/she said’ and cannot be just an ‘oath against an oath’ as stipulated under the PA statute Section 4902, Section F.

This means the OAG used McQueary’s alleged ‘credibility’ as a front for the perjury charges, but had some other knowledge that Curley and Schultz were not giving truthful statements in their testimonies. 

But, some other knowledge of what?

 (I would like to clarify that I am not claiming Schultz’s notes or any emails actually prove any PSU official committed perjury or conspired to cover up Sandusky’s crimes. To this day, there has been no evidence of such crimes. The courts will rule on the charges if these cases ever go to trial.  My desire is to examine the steps taken by all involved and shed light on the malfeasance of this case, in particular the apparent malfeasance of Cynthia Baldwin and the OAG.)

SCHULTZ’S FILE AND THE MARCH 2012 PERJURY PARTICULARS

Let’s begin with the fact that a file, compiled by Schultz between 1998 and 2001, and containing information on Sandusky’s behavior with young boys in 1998 and 2001 did exist in a drawer in his former office at PSU up until November 2011.

This file was neither ‘secret’ nor ‘discovered’ by Freeh in May 2012 because we now know copies of the file were turned over to the OAG in April 2012 by Schultz and also by his assistant Kim Belcher.  However, I believe a hard copy of this file was in the hands of the OAG in January 2011 before the PSU officials testified.

It is important to remember that Schultz retired from PSU in June 2009.  When he was subpoenaed in January 2011, he was no longer employed at the university and thus had no access to his former office.

HE SAID, SHE SAID

In late 2010, PSU general counsel Cynthia Baldwin was handling subpoenas issued by the OAG for the PSU officials instructing them to turn over information relating to Sandusky and to appear in court to testify at the Grand Jury hearing.

What exactly was discussed between Baldwin and the PSU officials is not known, but on November 1, 2012, Schultz filed a pre-trial motion claiming, among others things, that he informed Baldwin in early January 2011, in response to the aforementioned subpoenas, that he ‘thought there might be a file relating to Sandusky in the office of the senior vice president’ (his former office to which he no longer had access) and that ‘reviewing such notes and documents would help his memory and allow him to testify more accurately.’  In her legal opinion, he said, she told him not to look for or review any documents or discuss the case with anyone.

Ironically, on October 26, 2012, just days before this very motion was filed, Baldwin testified under oath that she was never informed by Schultz of the existence of any file.  On page 20, OAG prosecutor Frank Fina said that ‘we also know that Mr. Schultz had a file regarding Jerry Sandusky in his office’ and that ‘there were handwritten notes and emails pertaining to the 1998 and 2001 crimes of Mr. Sandusky. Did he (Schultz) ever reveal to you the existence of that Sandusky file or any of its contents?’  Baldwin answered, ‘Never.  He told me he didn’t have anything.’

Within days of each other, Baldwin and Schultz gave the court two opposing accounts regarding Schultz’s disclosure of the Sandusky file back in early 2011.  Only one account can be true.  The other is a lie.  Given the information we have to date, we can vet both accounts and reasonably conclude which account passes the litmus test.

PROCESS OF ELIMINATION

Vetting Baldwin

Let’s assume Baldwin is telling the truth.  That means Schultz never mentioned the file to her in early January 2011 when Baldwin alleges she went to Schultz, Curley, and Paterno with Subpoena 1179 asking for any and all information regarding Jerry Sandusky, as well as with a subpoena for each man to testify before the Grand Jury. If Schultz and the others were in fact covering up for Sandusky, as alleged by Freeh and the OAG, then at this point in time, they would have been on heightened alert to deny any knowledge of Sandusky’s crimes and to make sure any evidence that could be used against them was suppressed.  Assuming there was a cover-up, it makes perfect sense that Schultz would never have informed Baldwin of this file in January 2011. 

It makes sense except for one pesky little fact.

As I mentioned earlier, in June 2009, Schultz retired as senior VP of Finance and Business after almost 40 years of service at PSU. However, in September 2011 he was temporarily rehired and named interim senior VP for Finance and Business while the University conducted a national search to fill the position.

So, eight months after Schultz was subpoenaed for information and testified at the Grand Jury hearing, he was back in his office at PSU: the very office that contained the Sandusky file.

Again, assuming Baldwin is telling the truth and Schultz never mentioned the file-for ‘obvious’ reasons, this would have been the most fortuitous break in the entire cover-up.  Schultz now had access to the ‘secret’ Sandusky file with the means and motive to destroy all incriminating evidence that could be used against him and the other PSU officials. 

The only problem is that during those two months back at PSU, with complete access to the ‘secret’ file, Schultz didn’t remove it and he didn’t destroy it. 

We know this because his assistant Kim Belcher testified at the July 2013 hearing that Schultz had called her in November 2011, after he had been charged, and asked her to get his ‘transitory file’ from his office.  She retrieved that file for him and on her own found the Sandusky file. She made a copy of the Sandusky file, accidentally gave the original to Schultz and kept the other copy for herself.  They both turned over their files to the OAG in April 2012. 

Belcher’s testimony, of course, blows holes in Freeh’s claim that his team ‘discovered’ Schultz’s Sandusky file.  Freeh said, “He (Schultz) actively sought to conceal those records. We found them in conjunction with the attorney general. They’re very critical notes, very critical records … it was an active case of trying to conceal evidence, you know. You don’t do that. It’s a dumb thing to do.”

At this point, it is clear, that Freeh did not ‘discover’ anything; the OAG (or Penn State) gave Freeh a copy of the file that Schultz turned over. And, the PSU IT department found and turned over the emails to the OAG who then handed them over to Freeh. The fact that Schultz had the opportunity to alter, remove, and/or destroy his Sandusky file when he was rehired in the fall of 2011 but didn’t, suggests very strongly that he was not protecting a ‘secret’ file, was not concerned about his grand jury testimony, and was not part of some elaborate cover-up.

Based on Schultz’s actions from January-November 2011, there is no evidence that he concealed or wanted to conceal the Sandusky file, just the opposite actually.  And therefore, there is no reason why he wouldn’t have mentioned it to Baldwin.

But, let’s dig deeper.

Vetting Schultz

Now let’s assume Schultz is telling the truth about the file.

In January 2011, Baldwin’s primary directive, ordered by the OAG, was to make sure the PSU officials turned over anything and everything related to Sandusky.

Schultz claims he told Baldwin there may be a file relating to Sandusky in his former office.  According to Schultz, she told him not to look for it.  But, it was her legal obligation to the courts to turn over any evidence disclosed to her.  As an officer of the court (and a former PA Supreme Court Justice) it is hard to imagine that she would shirk her legal duties and not check out every lead the PSU officials told her. Therefore, it is highly likely that she did indeed check for a Sandusky file in Schultz’s former PSU office, then occupied by Al Horvath. If she did, she would have found it, because we now know it was there.

A few days later on January 12, 2011, after meeting with Baldwin, Schultz testified under oath at the Grand Jury hearing.  He was asked:  ‘Do you believe that you may be in the possession of any notes regarding the 2002 incident that you may have written memorializing what occurred?’  

Schultz answered: ‘I have none in my possession.  I believe that there were probably notes taken at the time.  Given my retirement in 2009, if I even had them at the time, something that old would have probably been destroyed.  I had quite a number of files that I considered confidential matters that go back years that didn’t any longer seem pertinent.  I wouldn’t be surprised, in fact, I would guess if there were any notes, they were destroyed on or before 2009.’

In essence, he is saying that notes were probably taken and that he did keep confidential files, but by this point in time, in conjunction with his retirement, they probably were destroyed.

That sounds very similar to what he claims he told Baldwin just days earlier: that there might be a file relating to Sandusky in his former office.

In addition, the following email shows that on January 10, 2011, Baldwin called Wendell Courtney, PSU legal counsel in 2001, after she first spoke with Schultz regarding the subpoena. Courtney tells Schultz that Baldwin asked ‘what I remembered about JS issue I spoke with you and Tim about circa 8 years ago.’  It appears not only did Baldwin know to call Courtney but presumably knew for a fact that he spoke with Schultz back in 2001 regarding Sandusky.  In other words, Baldwin didn’t call Courtney asking if he ‘knew anything about 2001,’ but asked precisely what ‘he remembered’ about the 2001 Sandusky discussion.  

The email also reveals that Schultz and Courtney had recently ‘chatted about this’ 2001 issue.  That makes sense because Courtney was PSU legal counsel in 2001 and Schultz had conferred with him at that time. After being subpoenaed, it is understandable that Schultz would call him regarding the 2001 incident.

It certainly wouldn’t be out of the ordinary for Baldwin to call the former legal counsel from 2001 to ask him what he might have known.  But, the wording in the email comes across as if Baldwin knew for a fact that Schultz spoke with Courtney back in 2001 and she was calling him specifically to ask ‘what he remembered.’

This would suggest that when Schultz spoke with Baldwin and mentioned the possibility of a Sandusky file, that he also mentioned the 2001 discussion he had had with Courtney, especially since Schultz had just recently spoke to Courtney as per the email.

In any event, this email confirms that Baldwin was actively gathering information regarding Sandusky, either on her own or by following up on a lead that Schultz most likely disclosed to her. She also retrieved the 1998 police report around this same time period. If she retrieved the police report and made a call to Courtney, wouldn’t it be logical, as her duty to the court, to follow up on the Sandusky file lead as well?

At this point it appears the truth is in favor of Schultz.  But there is one more analysis I believe shows beyond all doubt that Schultz did indeed inform Baldwin of the file. 

GRAND JURY ANALYSIS

When you analyze the questions the OAG asked Paterno, Curley and Schultz, it seems to be clear that Schultz’s file was in the hands of the OAG, and they were using it as a guide (perjury trap) during questioning.  If the OAG did indeed have this file, it can only mean that Baldwin followed up on Schultz’s lead and retrieved the Sandusky file in his former office, made a copy for the OAG, and returned the original file back to the drawer.

OAG’S KNOWLEDGE AS OF 1-12-11

We need to go back in time and recount exactly what the OAG knew regarding the 2001 Sandusky incident at the time of the Grand Jury hearings of Paterno, Curley and Schultz on January 12, 2011.

At this point in time they had:

·         The 1998 Police Report regarding an investigation of Sandusky with boy(s) in a shower,

·         Mike McQueary’s testimony of the 2001 incident and what he allegedly told Paterno, Curley and Schultz, and

·         Police Interviews with each man.

It is vital to remember that the OAG supposedly does NOT have Schultz’s Sandusky file of notes/emails.

The following chart shows specific OAG questions asked or not asked of each man during the GJ hearing.

GJ QUESTIONS	PATERNO	CURLEY	SCHULTZ
RE: Notes, Memorialization	NONE	NONE	Q Do you believe that you may be in possession of any notes regarding the 2002 incident that you may have written memorializing what occurred? A I have none of those in my possession. I believe that there were probably notes taken at the time. Given my retirement in 2009, if I even had them at that time, something that old would have probably been destroyed. I had quite a number of files that I considered confidential matters that go back years that didn't any longer seem pertinent. I wouldn't be surprised. In fact, I would guess if there were any notes, they were destroyed on or before 2009. Q Are you aware of any memorandums or any written documents, other than your own notes, that existed either at the time of this incident or after this incident about the 2002 events? A No. Q Would that be standard? Would that be the way the university operates when an allegation is made against a current employee or a very famous prior employee, that nothing be put in writing? A The allegations came across as not that serious. It didn't appear at that time, based on what was reported, to be that serious, that a crime had occurred. We had no indication a crime had occurred.
	(Paterno)	(Curley)	(Schultz)
RE: Knowledge of any other Sandusky incidents/1998 incident	Q Other than the incident that Mike McQueary reported to you, do you know in any way, through rumor, direct knowledge or any other fashion, of any other inappropriate sexual conduct by Jerry Sandusky with young boys? A I do not know of anything else that Jerry would be involved in of that nature, no. I do not know of it. You did mention -- I think you said something about a rumor. It may have been discussed in my presence, something else about somebody. I don't know. I don't remember, and I could not honestly say I heard a rumor.	Q At the time of the incident in 2002, were you aware of any other incidents involving alleged sexually inappropriate misconduct by Mr. Sandusky anywhere, on university property or otherwise? A No, ma'am. Q Since this has come to light, have you become aware of other allegations of inappropriate sexual conduct by Jerry Sandusky on university property or elsewhere? A Other than what was mentioned this morning. Q Specifically a 1998 report, did you know anything about that in 2002? A No, ma'am. Q But the 1998 incident was never brought to your attention? A No, ma'am, not that I recall. Q Have you ever heard -- anything other than what you heard from Mike McQueary, have you ever heard anything at all regarding inappropriate conduct between Jerry Sandusky and young men either on or off campus? A No.	Q You knew the university police were involved in the 1998 investigation, right? A Yes. Q What did you understand the 1998 incident, in a general way, to allege? A Again, I thought that it had some basis of inappropriate behavior, but without any specifics at all. Schultz was asked many other questions regarding the 1998 incident.
	(Paterno)	(Curley)	(Schultz)
RE: Law Enforcement	NONE	Q Was there a specific conversation about whether or not to go to law enforcement authorities about this? A At the time I don't recall that because, again, I didn't feel -- at least I didn't feel personally that any criminal activity had occurred. So my thought was that because a young person was there, that I needed to take it to the Second Mile.	Many questions were asked whether or not PSU involved law enforcement in 2002(2001) and Schultz had indicated each time that he thought Child & Youth Services (CYS) was involved in 2001.

ANALYSIS

NOTES: From the chart you can see that the OAG only asked Schultz if he was in ‘possession of any notes memorializing the 2002 incident.’ Schultz said that he was not currently in possession of any notes, that he may have taken some, and if he did they were probably destroyed at this point. Later, they asked him again, ‘Are you aware of any memorandums or any written documents, other than your own notes, that existed either at the time of this incident or after this incident about the 2002 events?’ Schultz said, ‘No.’ They then asked, ‘Would this be standard, not to put something in writing?’

As you can see, only Schultz was asked about notes and he was asked several times. Paterno nor Curley were asked if they had taken notes or memorialized the incident.  That would suggest they had the ‘secret’ file with Schultz’s notes in hand, otherwise they would have asked the other two PSU officials the same standard question about notes.

It is interesting to point out in the second instance, they phrased it, ‘other than your own notes….’  That seems to confirm they indeed were aware of his notes.  Prior to that, Schultz had only stated that he ‘probably’ took notes and ‘if he did’ they were most likely destroyed.  Also, what ‘other documents’ were they asking about?  It must have been the emails that were also in the file in which they appeared to have had.

KNOWLEDGE OF OTHER/1998 INCIDENT: Each man was asked if he was aware of any other incident (besides 2001) that would have involved inappropriate sexual misconduct of Sandusky with young boys. Remember, the OAG had the 1998 police report detailing the 1998 investigation, but none of the PSU men are mentioned in the report so the OAG would not know whether these men knew about 1998 or not.  Schultz acknowledged he knew about 1998 but not the specifics.  Paterno said he was not aware but maybe heard a rumor but could not say for sure.  The OAG did not question Paterno any further on that. 

However, when Curley was asked whether he was ‘aware of any other incidents,’ he said, ‘No.’ He was again asked, ‘Since this has come to light, have you become aware of other incidents?’ Curley seemed confused and they further asked, ‘Specifically, a 1998 report. Did you know anything about that?’  Curley again answered, ‘No.’ Again, he was asked, ‘But the 1998 incident was never brought to your attention?’ he said, ‘No.’ And yet again, he was asked, ‘Have you ever heard anything, other than from Mike McQueary, about inappropriate conduct between Sandusky and young men?’ he answered, ‘No.’

The comparison of questions re the 1998 incident between Paterno and Curley is eye-opening.  Paterno was asked once, says he was not aware of anything else, and they moved on.  Curley was grilled over and over five times regarding this prior Sandusky incident.  The only information they supposedly had at the time would not lead them to believe Paterno or Curley were aware of 1998, so why was Curley grilled? 

Schultz’s notes indicate that Schultz reviewed the ‘1998 history’ with Curley on 2-12-01.  This is the only piece of information at the time that would indicate Curley possibly knew of the 1998 incident.  Again, this line of questioning suggests the OAG had Schultz’s notes during the January 12, 2011 hearing.

LAW ENFORCEMENT: From the chart you can see that Paterno was not asked about involvement of any law enforcement regarding the 2001 incident.  Schultz was asked many times and answered each time that he thought CYS/DPW was involved. 

Curley was asked, ‘Was there a specific conversation about whether or not to go to law enforcement authorities about this?’  He said that he ‘did not recall a conversation.’ This may be a standard question to ask, but why wasn’t Paterno asked?   Schultz’s notes/emails indicated that ONLY Schultz and Curley developed a plan to 1) Tell the Chair of the Second Mile, 2) Report to Dept. of Welfare (DPW), 3) Tell Sandusky to avoid bringing children into Lasch Building.  Therefore, if the OAG had these notes, then they knew that Paterno was not necessarily privy to this plan and hence no questions were asked.  The fact that only Curley and Schultz were asked about law enforcement strongly suggests they indeed had Schultz’s notes (i.e. the ‘secret’ file).

PERJURY CHARGES

However, what seems to be even more evidence that the OAG had this file (from Baldwin) in January 2011, came on March 30, 2012.  The Commonwealth (OAG) issued Statements of Perjury which outlined what they believed were perjurious statements by Curley and Schultz from their Grand Jury testimonies.

CURLEY PERJURY CHARGES

From the above chart, regarding the question to Curley re ‘Law Enforcement’, the OAG declared Curley’s answer to be perjurious.

Remember, Schultz’s file was not turned over to the OAG (by Schultz and Belcher) until April 2012, so how could this statement be determined perjurious on March 30, 2012?  

There was absolutely no other corroborating evidence that supported Curley knowing of a ‘specific conversation about going to law enforcement or not.’

The OAG by this time (3-30-12) did have the 1998 and 2001 emails from the IT department.  But, the only email from 2001 (from IT dept.) that mentions the steps taken regarding Sandusky was the following 2-28-01 email:

There are references to ‘the other one’, ‘the two groups’, and ‘the other organization.’  However, without the benefit of Schultz’s notes, these references have no specific meaning and, even so, do not corroborate ‘law enforcement.’

However, what is more telling comes from Ray Blehar’s disclosure of Rodney Erickson’s notes from January 31, 2012 in which then PSU President Erickson discussed getting copies of ‘notes- Curley + Schultz.’ 

Clearly, this January 31, 2012 entry proves Schultz’s notes were known well before they were turned over by Belcher and Schultz in April 2012.  The only other person with knowledge of such notes would have been Baldwin, who most likely, as proven now, gave a copy to the OAG and (likely) Freeh.

This perjury charge re Law Enforcement is a strong indication that Law Enforcement was actually part of the discussion/evidence between Curley and Schultz that we have not seen.  Was this charge based on another email or note from Curley or Schultz that has been suppressed?  If Baldwin did remove the file in January 2011, she could have excluded pieces of the file that she put back in the drawer -- but gave the full file of evidence to OAG/Freeh.

And, if such an email or note exists, it means that going to law enforcement was actually discussed since they charged Curley with perjury on this question. If so, it is likely the email/note mentioned that Schultz or Curley reported the incident to Tom Harmon, Director of University Police, i.e. law enforcement. 

Remember, Harmon had emailed Schultz the day after Paterno reported the 2001 incident to Curley and Schultz (to alert Schultz about the 1998 police report).

According to the testimony of Harmon, Schultz did NOT contact him about the 1998 file. However, Harmon also testified that Schultz never told him about the 2001 incident, so what caused Harmon to email Schultz about the 1998 police report?  And what is the truth?

According to another blog post from Blehar, he identified an end note from the Freeh Report of a still unknown, unseen communique between Schultz and Harmon:

End Note 304:  Schultz confidential file note (5-1-12).  This is a reference from the report: “On February 12, 2001, Schultz also asked Penn State Police Chief Tom Harmon if a police file still existed for the 1998 event.” 

If this request was simply for the 1998 file, why wasn't it included in the Freeh Report like the email above from Harmon?  What other information did it contain?  Perhaps Schultz did inform Harmon of the 2001 situation before asking about 1998.  That would be entirely logical - and would actually have resulted in a perjury charge for Harmon.

This document may be one of the pieces of information the BOT is trying so hard to protect -- or should I say "conceal?"

SCHULTZ PERJURY CHARGES

Also in that filing of Perjury Particulars on March 30, 2012, were Schultz’s alleged statements of perjury from the OAG.

 In this specific citation, the OAG is alleging that Schultz lied about ‘knowing specifics’ of the 1998 incident.  The only corroborating documents that detailed Schultz’s specific knowledge of the case were in his Sandusky file.  They were his handwritten notes that detailed the 1998 incident.  No other evidence they had at the time would support this perjury charge except for his notes-that supposedly weren’t turned over until April 2012.

(Again, the information from Schultz’s file does not necessarily support perjury, these men testified 10 years after the incident without any review or discussion to refresh their memory.)

REVIEW OF REPRESENTATION

Remember, Baldwin is the same lawyer who represented Schultz, Curley, and Spanier at their Grand Jury hearings.  She now claims she was only representing PSU and not the individual PSU officials.  However, according to a legal expert, her claims of only representing PSU don’t actually matter.

Jason Pelt, defense attorney and former Marine JAG prosecutor, told me, “When it comes to representation, it does not matter who Baldwin believed she was representing, it only matters if the individuals believed she was representing them.”

It is clear that Curley, Schultz and Spanier believed she was representing them.  We know this because only their attorney can be present during testimony and she was indeed present. In addition, each man verbally identified ‘Cynthia Baldwin’ to the court when the judge asked, ‘Are you represented by counsel?’

 

Although she now contends she was only representing PSU and not the individuals during their respective hearings, why wasn’t she representing PSU during Paterno’s testimony, when Paterno had his own legal counsel?  Simple answer: she was not allowed to be present with Paterno because only the witness’s attorney is allowed to be present during questioning.

Why the back peddling from Baldwin?  Perhaps because of her blatant conflict of interest and possible malpractice before the court regarding Schultz’s file.

Regardless of her legal spin, she was indeed representing Schultz, Curley, and Spanier, as evidenced by her actions with them before the hearings, her court appearance with them during the hearings, and their verbal identification of her as their attorney which she did not object to or correct. 

MOST PROBABLE SCENARIO

After vetting the statements of Baldwin and Schultz, it appears the most likely scenario is that Schultz did indeed tell Baldwin of a possible Sandusky file and that she retrieved it and gave a copy to the OAG.

So what does this mean?

First of all, if true, it means that Baldwin not only had an obvious conflict of interest regarding client-attorney privilege, but also has a liability issue.  Pelt explained that, “Baldwin would be liable if Schultz’s position was made worse or if the information was used against him toward his detriment.”  He said, if true, she is facing ethical issues and possible disbarment from the Pennsylvania Bar Association.

Secondly, if true, it means Baldwin committed perjury at her Grand Jury hearing on October 26, 2012.

Finally, if the OAG knew she was lying and allowed the perjured testimony, then more ethical issues come into question and produce major legal problems for the OAG and Baldwin.  Pelt added, “If the OAG used Baldwin to get information on her clients to be used against them, then that evidence could be suppressed at trial.”

CHARGES REVISITED

Remember, the initial charges filed in November 2011 were Perjury and Failure to Report, wherein:

1)  Perjury was based only on Curley and Schultz's testimony that they were not told of sexual abuse by McQueary; and,

2)  Failure to Report would have had to occur on or after November 5, 2001 to keep within the 10 year statute of limitations.

Based on the above analysis, it is likely that the initial perjury charges were not based on McQueary’s ‘credibility’ but rather on the notes and emails found in Schultz’s file.

Regarding the Failure to Report, if the OAG had Schultz’s Sandusky file in January 2011 then they clearly knew the McQueary incident happened in February 2001 and NOT March 2002. That would mean that the 10 year statute of limitations for Failure to Report (FTR) had expired in February 2011. By November 2011, this charge was no longer enforceable. 

It appears the OAG used the date of March 2002 as a ruse in order to keep FTR within the 10 year time frame in order to charge the men in November 2011, along with Sandusky.  After all, charging the PSU officials the same day as charging Sandusky helped give birth to the false narrative that Penn State was to blame for Sandusky’s crimes.

In essence, the ONLY way for the OAG to charge Curley and Schultz with perjury would have been with the benefit of Schultz’s notes and the ONLY way to charge them with Failure to Report in 2011 was to PRETEND they did not have his notes and then choose the 2002 date (over the correct 2001 date) provided by Mike McQueary.

PSU/BALDWIN/OAG/FREEH WIN, FOR NOW….

Imagine if Baldwin did indeed hand over Schultz’s Sandusky file to the OAG in January 2011. Imagine all the legal malpractice taking place at the hands of those entrusted to uphold the law. How could they possibly get away with it and cover it up? Answer: Hire a man to ‘discover the secret file,’ write a scathing report of a cover up, and hope that one or both men plead guilty or that one man flips on the other.  Under a guilty plea or flip scenario, NO EVIDENCE is really needed because the case can be decided on testimony alone. 

But what would cause such a scenario to occur?

Welcome to the Freeh Report.

The Freeh Report has been the gift that keeps on giving and appears to have protected everyone with an agenda.
1) The PSU Board of Trustees (BOT) paid Louis Freeh to write an ‘independent investigative report’ that justified their firing of Joe Paterno and Graham Spanier. (PSU scores)
2) Freeh received $8 million for writing this ‘report’ that was spoon fed to him from the OAG. (Freeh scores)
3) The PSU BOT in conjunction with the OAG, I believe, used Freeh to ‘discover’ Schultz’s ‘secret file’ to protect the OAG, Cynthia Baldwin, and Penn State from legal malpractice. (PSU, Baldwin, & OAG score)
4) Freeh returns favor to OAG and convicts Curley, Schultz, and Spanier in the court of public opinion. (OAG scores)

Yes, these entities may be winning for now, but it is only a matter of time before the celebration ends. And that time is drawing near.

BUT, THE FINAL VICTORY WILL BE OURS

Just recently, on July 20, 2015, the judge ordered the release of the Freeh documents.  Finally, the light will be shed on the truth.  This is a great victory for the Paternos, the alumni trustees, and the entire Penn State community.

I truly believe the Schultz file is one major reason why PSU and Freeh have been relentless in fighting the Paternos and the alumni trustees for the release of the Freeh documents.  I believe the truth about Schultz’s file will reveal the malpractice and total lack of integrity of Cynthia Baldwin, the OAG, Freeh, and Penn State’s own Board of Trustees─ or the, Not So Fab Four.

It’s hard to agree with anything Freeh has ever said, but in this case I think his own words will soon come back to haunt him and his Not So Fab Four cohorts:  

“It was an active case of trying to conceal evidence, you know. You don’t do that. It’s a dumb thing to do.”

Printable version here:  http://march4truth.com/uploads/3/3/1/5/3315120/garyschultz-secret_file-reason-psu-freeh-fighting-release-of-freeh-docs.pdf

Were Tom Harmon and Wendell Courtney untruthful about the 2001 incident?

Courtney and Harmon's roles, responsibilities, and relationships in the Sandusky case raise serious questions about their statements regarding lack of knowledge of the 2001 incident. 

By
Ray Blehar

Former PSU legal counsel Wendell Courtney and former University Park police Chief Tom Harmon are two individuals who have essentially escaped scrutiny for their roles related to the 2001 Sandusky incident.  

Ironically, they are the only PSU persons involved with the incident who only had regular contact with Sandusky and/or The Second Mile outside of the workplace.  

Harmon at one time lived at 120 Norle Street in Lemont and was Sandusky's neighbor. The two men also attended St. Paul's Methodist church.  

Courtney, by virtue of his wife Linette being a member of the The Second Mile (TSM) board from 1998 to 2005, would have routinely seen Sandusky at TSM fundraisers and events.  According to a TSM board member, the charity expected 100% participation and donations from its board members at every event.  Wendell and Linette typically donated between $1,000 and $1,500 per year to TSM during the time she served and after the time she stepped down from the board.  According to the charity's Annual Reports, they last donated in 2009 (year ending August 31, 2009).

In 2009, Wendell Courtney was retained by TSM as counsel and assisted them in the Sandusky matter.  An NBC news article noted that Courtney assisted with the subpoena for the expense records that had gone missing from TSM's storage facility.

These men's connections to Sandusky and, in Courtney's case,  TSM deserve consideration as possible motivations for them to act outside PSU's interests in response to the Sandusky scandal.  

Tom Harmon

In Harmon's case, he was a witness for the prosecution, as well as being exempted from the Freeh investigation at the request of the Attorney General. The latter point was rather disconcerting, considering that Freeh was conducting an alleged "full" investigation but wasn't allowed to talk to the Chief of police who was involved in both the 1998 and 2001 incidents.

1998:  Harmon's testimony at the July 2013 preliminary hearing regarding the 1998 police file and called into question his credibility as a witness.  Harmon stated he didn't recall ever giving the 1998 police report to Schultz, nor did he recall Schultz ever asking for it  (page 174).









That testimony likely took a chunk out of the prosecution's perjury charge that Schultz lied about his knowledge of the 1998 file, as well as, what was meant by "reviewed 1998 history" in the Schultz "secret file" note from 12 February 2001.  

Of course, neither the Patriot News (i.e., Charles Thompson) or any of the other local media chose to report anything about Harmon's faulty memories.  However, in a recurring pattern, Thompson reported a blatant falsehood that Schultz had inquired about the 1998 file from Harmon. 

"In 2001, and shortly after Shultz would have received McQueary’s account of the Lasch Building incident involving Sandusky, Harmon testified that Schultz asked him an out-of-context question about documentation of the 1998 report."

Harmon was very reliant on documents and leading questions by the prosecution in order to recall the events of 1998, even with that assistance, he erred in stating that Detective Schreffler and DPW agent Jerry Lauro had interviewed Sandusky at his home (page 136).  The last page of the 1998 police report  was clear that the incident took place in the locker room.  In addition, Harmon also testified that the Victim 6 incident occurred between 7-9 AM on Sunday, May 3rd, rather than 7-9 PM.  This error was of Harmon's own making because when he changed the title page of the police report, he also entered the incorrect time.  

While Harmon's memory was very unreliable to the unbiased observer, his overall trustworthiness and honesty also should have been called into question regarding his mislabeling of the 1998 police report.  Again, this is a case where the media completely ignored history and went along with Harmon's testimony (page 78) that he mislabeled the file as to avoid "premature publicity" about the investigation.  

Triponey:  Noted football players being
arrested at a greater rate than other students

Harmon retired from the University Park police force in 2005, however during the period from 2000 to 2005, football player's names were being splashed across the newspapers at a frequent rate.  It didn't appear that Harmon was the least bit worried about publicity compromising those investigations.  Note, that this was overlapping with the time-frame that Vicky Triponey was complaining that the football players were being arrested at a much greater rate than other students.  Many of these football player arrests were for alcohol related charges and other hi-jinks on campus, at which most other colleges and universities, the police likely would have looked the other way.  

It also should come as little surprise that Harmon would make that assertion about avoiding publicity, given it was the prosecution's "pet" reason for the alleged PSU cover-up.  However, Harmon's concern about publicity was indeed genuine in one regard -- the embarrassment it could cause his former neighbor, Sandusky and their church. 

Conclusion 1: Protecting his friend, Sandusky, and their church from public embarrassment was very likely Harmon's motivation for filing the police report as "Administrative Information."

2001:  As a prosecution witness, it was Harmon's contention that even though he was conversing with Schultz about the 1998 police file on February 12, 2001, Schultz never informed him of that incident.  Few in the media (and the public) have questioned the veracity of Harmon's statement, likely because Schultz was being made out to be a liar and a child abuse enabler.  However, Harmon's testimony deserved scrutiny and when honestly reviewed revealed the former police chief had a very poor memory.  In addition, Harmon, as a mandated reporter was motivated to say he had no knowledge of the case, otherwise he could have been charged with failure to report (FTR).

Faulty Memory

Harmon also was adamant that if he was told that Sandusky had been involved in another incident, he would have surely remembered it.  But Harmon's faulty memory was exposed repeatedly under cross-examination by his lack of recall of serious incidents that took place on campus in 2001.  

Eventually, the defense got Harmon to admit that he was only able to testify about the incidents in question after refreshing his memory be reviewing documents.

Avoiding Arrest

The second part of the veracity issue regards Harmon as a police officer was a mandatory reporter of child abuse.  Obviously, if he was told about the 2001 incident he violated the law by not reporting it, therefore it was in his self-interest to say Schultz never told him about it.  Given the fact that Harmon sought out the 1998 police file just a day after Schultz learned of the incident, it strains credulity that Schultz didn't tell Harmon what had transpired.  It's highly likely that the Attorney General cut a deal with Harmon not to charge him with FTR in exchange for his testimony that Schultz didn't tell him what transpired in 2001. 

Tom Harmon:  Motivated to lie to about his
knowledge of 2001 to avoid arrest for FTR.

Logically, Harmon, as the Chief of police, would have been the "point man" for either Schultz or Courtney for contacting CYS and/or the local DA to initiate an investigation (as Schreffler did when he received a report on Sandusky from the mother of Victim 6 in 1998).  Harmon was contacted within the 48 hour window that PSU had to make an abuse report, therefore it is very possible the either Schultz or Courtney requested he contact the appropriate parties.

At the preliminary hearing, Gary Schultz's grand jury testimony was read into the record.  Schultz repeatedly testified (pages 212-215) that he believed that someone from PSU had contacted the local child welfare agency about the 2001 incident for investigation.


The timeline and evidence regarding the 2001 incident also indicates that Schultz and Curley's planned to interview Sandusky on Friday, February 16th were delayed.  In fact, the timelines between the 1998 and 2001 cases are very similar.  It is entirely possible that Harmon was manipulating the process to provide the appearance (to Schultz) that CYS was investigating.  

Finally, Harmon had retired from the University Park police in 2005 and was enjoying retirement in State College -- as many of us hope to do some day.  However, in August 2011, just months before the scandal hit, Harmon moved to Pittsburgh.  Was this just another coincidence?

In summary, Harmon may have unilaterally made the decision not to report Sandusky to the authorities in 2001 to protect his former neighbor and church from embarrassment. When interviewed by the AG in 2011, Harmon likely cut a deal to avoid being charged.

Conclusion 2:  Harmon's self-interest to avoid being charged with failure to report child abuse likely caused him to lie about Schultz failing to tell him about the 2001 incident.

Wendell Courtney

In the early days of the scandal, some attention was paid to Courtney because of his ties to TSM, but as the scandal was skewed into a Penn State scandal only, curiosity and reporting on Courtney faded (as it did for TSM).  Those early stories focused on the question of whether Courtney had knowledge of the 1998 incident and the grand jury report's allegation that he was serving as the legal counsel for both TSM and PSU in 1998.   However, his eventual termination as legal counsel for PSU and subsequent hire by TSM should have raised more questions about his role in the scandal.

1998:  The Sandusky grand jury presentment (page 9) reported that Schultz had consulted Courtney about the 1998 incident (but failed to state Courtney was consulted about the 2001 incident).  It also reported that Courtney "was then and remains counsel for The Second Mile."

The Second Mile

Courtney immediately denied that he was the counsel for TSM in 1998 and attempted to correct the record.  However, AG press officer Nils Frederiksen refuted Courtney's claim arguing that it was "semantics" and that the point was that Courtney had knowledge of the 1998 investigation.  The question of Courtney's employment was resolved later in an article in the ABA Journal. TSM's new Executive Director David Woodle stated that Courtney was not retained by TSM until 2009.  This refuted the statement in the grand jury presentment, as well as Frederiksen's rebuttal.

Knowledge of the 1998 investigation

The question of whether or not Courtney had knowledge of the 1998 incident can be solved by comparing evidence for and evidence against.   

Evidence for:  Gary Schultz's grand jury testimony (page 217)  that "perhaps" Courtney was consulted in 1998 is the only evidence that indicates Courtney's knowledge of the incident.  It was that testimony that was the basis for the statement on page 9 of the grand jury presentment and it is dubious at best.

Evidence against:  When PSU received the report of abuse allegations against Sandusky on the morning of May 4th, 1998, Detective Schreffler contacted ADA J. Karen Arnold at 4:00PM that day to alert her to the investigation.  According to the Freeh Report (page 43), Schreffler did so, at least in part, so he didn't have "to worry about Old Main sticking their nose in the investigation."

At 5:00PM on May 4th and at May 5th prior to 9AM, Harmon provided Schultz with updates of the investigation (Freeh Report exhibits 2H and 2I).  There is no mention of Courtney in Schultz's handwritten notes memorializing the discussions.  Also, Courtney is not mentioned in any of the e-mails related to 1998 nor is he an addressee or a courtesy copy on them.

Conclusion 3:  The evidence does not support that Wendell Courtney had  contemporaneous knowledge of the 1998 investigation of Jerry Sandusky.

Courtney:  Obstruction in the
 recent Sandusky investigation?

2001:  Courtney's claim that he had no knowledge of sexual misconduct in the 2001 incident also appears to be truthful.

Courtney stated that "whether in 1998 or in 2002 (sic) or any other point in time, was I made aware or did I have knowledge of Jerry Sandusky engaging in sexual misconduct with young children."

Courtney's timesheet (Freeh Report exhibit 5A) from February 11, 2001 states that he spent 2.9 consulting and conducting research into the "reporting of suspected child abuse."  The word "sexual" does not appear on that record.  Also, Schultz contacted Courtney about the incident after discussing the incident with Paterno and Curley, but before speaking with McQueary, therefore it is unlikely that Schultz reported sexual misconduct.  According to McQueary, he didn't get into details with Paterno.  Paterno also stated he stopped McQueary early in the discussion due to the then-grad assistant being upset.

However, where Courtney veers into dubious territory is in his discussion of the files maintained (or more correctly, files that he failed to maintain) about 2001 Sandusky incident.  

According to the Freeh Report (page 83) on December 28, 2010, Schultz contacted Courtney regarding any information he may have had about Sandusky.  On December 30th, Courtney responded that the "last thing in my Penn State file" was the 1999 Sandusky retirement letter.

As proven by the billing record, Courtney should have had a record memorializing the consultation he made with Schultz regarding the 2001 incident.  Additionally, Courtney could have also searched his billing records to see if he had performed work regarding the incident.

In an e-mail to Cynthia Baldwin on January 9, 2011 (Freeh Report, page 84), Courtney wrote that we "don't have any file on the matter you and I discussed yesterday....I recall that someone (I don't think it was me, since if it was I would have written documentation of contact) contacted Children and Youth Services to advise of the situation."  

Courtney was also consulted about how to handle the January 7, 2010 grand jury subpoena that requested all employment and personnel records for Sandusky.  

The Freeh Report (page 82) stated that the lawyer handling the request was a PSU employee and that person did not tell Courtney the subpoena concerned Sandusky.  I find that statement hard to believe, given that Courtney was the lead counsel for PSU at the time and was treated in the same manner as any other Vice-President at the University.  Even so,Courtney also should have had some record on this consultation on file or in his billing records.

These deficiencies in record keeping begs the question, did Courtney expunge the records in his Penn State file after being retained by TSM to represent them in the Sandusky case?

Did disgruntlement contribute to PSU's records going missing?

McQuaide Blasko (MB) had provided legal services to Penn State for over half a century, however in the late Spring of 2009, the Board of Trustees recommended to Spanier that PSU should have its own in-house counsel.  It is quite a coincidence that this proposal bubbled up at the time that the Sandusky investigation had made its way to then-Attorney General, Tom Corbett.

Spanier did not immediately embrace the idea and requested that then VP of Business and Finance, Al Horvath, contract for an outside review.  The review concluded that MB was providing good service, but recommended that a small inside General Counsel's (GC) office be established while maintaining most of the legal services via contract.

Baldwin: Looked like a great hire...
...but turned out to be a disaster.

Eventual GC Cynthia Baldwin, in her role as emeritus trustee, was present at the BOT meetings in which the in-house counsel proposal was discussed.  After the approval of the proposal, Baldwin approached Spanier and offered to take the GC position.

Spanier believed Baldwin would be a wonderful choice, given her legal background as a former judge and that she was the former head of the PSU Alumni Association and also served as Co-Chair and Chair of the BOT.   The compensation committee, composed of Surma, Broadhurst, Garban, and Strumpf, were also enthusiastic about the hire.  Baldwin's hire was announced in January 2010 and she took over as GC on February 15th.

Conversely, MB was not at all pleased with the decision.  

One MB employee remarked that Baldwin had been foisted on PSU.  In addition, once Baldwin was in place as GC, she began taking work away from MB and moving it to her old firm, Duane Morris.

Therefore, between Courtney being removed as PSU's top legal advisor, reductions of business at MB by PSU, and his role representing TSM in the Sandusky case, he certainly had motivations to give PSU some pay back (e.g., expunging the 2001 records).  

Now, combine that with the fact that TSM's records related to Sandusky also went missing and it appears that one could make a fair case for obstruction of the investigation by Courtney.

Conclusion 4:  Courtney's failure to possess and maintain records related to the Sandusky case is highly questionable and has the appearance of obstruction of the investigation. 

In summary, it appears that both Tom Harmon and Wendell Courtney has sufficient motivation to be less than truthful about their respective roles in the 2001 Sandusky incident.  Certainly, if the case of the PSU Three ever gets to trial, the defense will be able to raise many issues of reasonable doubt when Harmon and Courtney are called to testify.