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."

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

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

By

Ray Blehar

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

Sound familiar?

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

Don't take my word for it, though.

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

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

What was going on?

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

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

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

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

The PSU Case Is Duke Lacrosse on Steroids

Fina and Nifong: Mirror misconduct?

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

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


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

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

McQueary Gave "More Vivid" Description in 2010

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

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

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

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

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

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

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

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

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

The Obstruction in the Shower

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

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

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

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

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

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

Spanier's version

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

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

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

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

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

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

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

Next: Part 2: Evidence Suppression