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

Frazier, Tomalis Received Updates About OAG Investigation of Spanier, Curley, and Schultz

Email reveals that Frazier and Tomalis were privy to PA OAG's "flip" strategy for Curley, Schultz, and Spanier.

By
Ray Blehar

In a document dated 31 January 2012, which was obtained via my investigation in November 2012, lead prosecutor Frank Fina had informed PSU officials that he "expected C & S to flip."  As my blog post on 18 August revealed, the Sandusky trial transcripts indicated that the ultimate target of the OAG was Graham Spanier.

E-mails obtained by Ryan Bagwell through his RTKL efforts, provide more evidence that members of the PSU Board of Trustees -- and specifically Special Investigations Task Force Co-chairs -- Kenneth Frazier and Ronald Tomalis were included in the group who were being updated by the OAG.   E-mails also reveal that the Freeh group received an update on the OAG's impending announcement of the Spanier charges.

The June 3, 2012 e-mail below indicates that Schultz had decided not to "cooperate."  In other words, he had turned down a deal to "flip" on Spanier.

While some may argue that this email is discussing participation in the Freeh (fake) investigation, logic and evidence proves that was not the case.  With Curley and Schultz facing charges, it was well established that they could not speak about anything pertaining to the case, thus wouldn't be considered as individuals to be interviewed by the Freeh group.  Spanier, on the other hand, had reached out to the Freeh group at the beginning of the "investigation" and offered to meet with them several times.

From ESPN:

"Since November of last year, when he resigned his presidency, he has wanted the Freeh Group to create an accurate report and has been determined to assist in any way he can," said the statement from Spanier's lawyers. They ended their four-paragraph statement by saying they remained "hopeful that truth and reason prevail."

This email erases any thought that the investigation conducted at Penn State was conducted "independently" and "in parallel" to the OAG's.  Clearly, the SITF co-chairs were being kept informed of the progress of the OAG investigation.

But what about the Freeh group?  Were they too being kept abreast of the OAG investigation's progress?

Freeh Group Informed of Pending Spanier Charges

On October 31, 2012, the day before the Conspiracy of Silence presentment was released, Frank Fina called Greg Paw of the Freeh group to inform him of the pending charges.  Paw emailed Fina back and asked if it could wait until the next day (Thursday, November 1st) or Friday?

Obviously, it couldn't wait because by the next day, the information that Fina was going to tell Paw would have been all over the news.  Thus, Fina requested that he "call quick now?"

The Conspiracy of Silence presentment is referred to as the Freeh Report-Lite in some circles because it appears to utilize much of the same language and content from the Freeh Report. Other emails after the Sandusky conviction and the release of the Freeh Report revealed the cooperation between the Freeh group and the OAG (reported here by Ryan Bagwell).  There is little doubt that the November 1st report was a collaborative effort by the Freeh team and the OAG.

The October 31st email revealed that the OAG maintained contact with the Freeh Group at least until Spanier was charged and additional charges were filed against Curley and Schultz.  Fina's rather urgent message to Paw, as well as the other Bagwell emails,  reveal that the two entities had formed a bond of sorts during their work together.

This email also raises the possibility that the Freeh group was billing Penn State for work outside the scope of the contract.  While the final cost of the Freeh "investigation" and report was a little over $8.1 million, additional billings were received from Freeh, Sporkin, and Sullivan (FSS) after the completion of the "investigation."  One has to wonder what exactly were the nature of these billings.

Perhaps someone on the BOT might request an audit?

Emails Prove Freeh Caught In Another Lie

The evidence reveals that Louis Freeh has been caught in another lie regarding the independence of his "investigation" at Penn State.

From his press conference transcript:

While independent, our work was done in parallel with several other active investigations by agencies and governmental authorities, including the Pennsylvania Attorney General, Pennsylvania State Police, United States Attorney, Federal Bureau of Investigation, and U.S. Department of Education. We continuously interfaced and cooperated with those agencies and authorities. We also received assistance from the National Center for Missing & Exploited Children (NCMEC). As promised, we immediately turned over any relevant evidence we found to these authorities, such as the critical February 27, 2001 emails between Messrs. Spanier, Schultz and Curley. 

Previously, evidence from the Moulton report and judicial proceedings revealed he lied about his team's "independent discovery" of the email evidence.  Moulton's report (page 158) revealed the emails were turned over to the Pennsylvania State Police on July 7, 2011.   Thus, the situation was the exact opposite of the situation stated by Freeh -- he didn't turn over evidence to the authorities; the OAG turned evidence over to him (or used the PSU legal counsel and/or the SITF as an intermediary).

Conclusion

Louis Freeh and FSS did not conduct a full, fair, and independent "investigation" of Sandusky's crimes occurring at Penn State.  The evidence uncovered so far indicates that Freeh investigation was little more than a public relations ploy to provide the appearance of an "independent" investigation.

The majority of people, especially the media, were taken in by the ruse.  However, at least one media member was not.   Snigdha Prakash, wrote in Slate magazine, that the selection of Frazier to lead the SITF would result in a cover-up.

Prakash was right about a cover-up, but missed on figuring out what would be covered up.  It was not PSU's role in the Sandusky scandal, but rather the Commonwealth's failure to take Sandusky off the streets in 1998.

Freeh's team was complicit in that cover-up.

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