Wendy Silverwood: 2/26/2016 Public Comment to BOT

At the core of any community is its values -- the shared ideals about how people should act toward one another, the standards to which we hold ourselves, and those beliefs we find important.

I wanted to address two of these Penn State core values out of the six that are published.

INTEGRITY: We act with integrity and honesty in accordance with the highest academic, professional, and ETHICAL standards.

Conversely the integrity, professional and ethical standards of individuals within our former Office of Attorney General ran counter to those of the University.

Frank Fina was the star prosecutor in that office — the guy who made Governor Corbett’s career.

Fina, along with other officials including those involved with the Sandusky case are caught up in what we now know as ‪#‎PornGate‬ and ‪#‎HateGate‬.

Among the hard core pornography Fina circulated from his office, much of it included images of women engaged in anal sex, oral sex and group sex.

Images of women being VIOLATED with various objects.

Recall that prosecutor Fina supervised that inflammatory grand jury presentment indicting Tim Curley and Gary Schultz with failing to report a crime of violation.

A crime acoustically and physically impossible as described, and later born out as untrue by evidence and testimony to a jury in the courtroom.

Yet nevertheless the media has repeated this singular lie as if it were the unassailable truth.

Prosecutors have a license to lie. It is not a stretch to see who was behind that lie.

Not once has Penn State ever paused to reflect on the established ethics, honesty and integrity of Tim, Gary, Graham & Joe – instead you chose to question and disbelieve.

Perhaps you should seriously question the ethics, honesty and integrity of Frank Fina.

RESPECT: We respect and honor the dignity of each person and embrace civil discourse.

Civil discourse ceased the moment John Surma stepped over Steve Garban’s body to ax Joe in an ill-timed, late night press conference carrying out a personal vendetta.

Civil discourse was replaced by verbal and physical harassment, death threats, vandalism and horribly flawed, sensationalist reporting in a media stampede.

Respecting the honor and dignity of Joe, Tim, Gary, Graham, the Lettermen, the student/athletes and the Penn State community at large, vaporized when a former prosecutor with a License To Lie indicted and smeared us all on July 12th, 2012.

Fina and Freeh chose to dishonor by selectively leaking to the media, even including a few Board members to carry out their deeds.

I ask that you respect and restore that honor to these people and their families and you insist on civil discourse by the media and the public.

Frank Fina and his fellow gunslingers in the Office of Attorney General reigned with fear & intimidation. It meant there were no holds barred on anybody who worked there.

These same prosecutorial bullying tactics were used to silence and discredit Tim Curley and Gary Schultz – suppressing evidence, falsely charging them and corruptly cooking up a scheme to charge Graham Spanier.

Appallingly, your own General Counsel helped with the deception.

Frank Fina’s email scandal of #hategate and #porngate has ripped open a constitutional crisis in our commonwealth.

It has exposed a network that ascribes to core values of Intimidation, Misconduct, Malfeasance, Dishonesty & Deceit.

A set of values that are antithetical to the values of Penn State.

Values that have destroyed lives, livelihoods and reputations, and shaken the very core of the community.

Is this our new standard?

Feudale Email Exposes Beemer, Others

AG First Deputy, Bruce Beemer's claim that Kane's conduct in releasing private emails was unethical seemingly pales in comparison to other potential misconduct in the case of the PSU 3.  

By
Ray Blehar

In a memo to top attorneys in the Pennsylvania Attorney General's Office (OAG), Bruce Beemer alleged that AG Kathleen Kane had conducted herself unethically for producing the so-called "private emails" of former (bumbling) grand jury judge, Barry Feudale.

In what should come as no surprise to anyone who has closely followed this case, Beemer has his own ethical issues regarding his handling of evidence in the cases of the PSU 3 (i.e., Timothy Curley, Gary Schultz, and Graham Spanier).

And what also should come as no surprise, the evidence involves emails.

Spanier Discovery Request

On September 9, 2014, counsel for Spanier joined a motion by the attorneys for Curley and Schultz requesting discovery of emails between Feudale and Fina regarding his removal as grand jury judge AND any correspondence about the Conspiracy of Silence case.   See below.

On September 9, 2014, the Commonwealth responded and clarified that First Deputy Attorney Bruce Beemer was the "lead prosecutor" since the filing of charges on November 1st, 2012.  Prior to the filing of charges, Senior Deputy Attorney General Jonelle Eshbach was the lead prosecutor on the case and was supervised by Chief Deputy Attorney General Frank G. Fina.

The Spanier filing also revealed the Beemer was instrumental in directing the searches for emails and in responding to requests of the status of the discovery.

3/545 = Playing "hide the ball"

Bruce Beemer:  Kept
playing"hide the ball?"

The Commonwealth's response stated it found 545 emails related to the search terms provided by the defendants and that the majority of the emails dealt with case logistics. Only three dealt with matters that were material to the case.

The "material" emails were from December 16 and 17, 2011 and referenced expanded Information Technology (IT) evidence collection  to be conducted by the PSU IT staff for hard drives, portable devices, and copies of emails from persons of interest.

When the Spanier defense team stated it "strained credulity" that only three emails were found, the OAG indignantly responded that the case prosecutors had been "forthright, cooperative, and direct" and that it "strained credulity" for them to be accused of playing "hide the ball."  

As reported in early 2014, substantial evidence in the case showed that the prosecutors had been playing "hide the ball" all along.  

The Feudale emails simply added to the existing mountain of evidence that has been suppressed in the case of the PSU 3.

Feudale Email

The July 18, 2013 email from Judge Barry Feudale to the Inky's Craig R. McCoy revealed that his email to Frank Fina regarding his removal as judge contained grand jury information.  Given that the email included various rants about AG Kathleen Kane over his removal -- and that Kane had stirred the hornet's nest with the Mouton investigation - there is little doubt it referenced the Sandusky and/or Conspiracy of Silence grand jury.   See below.

AG Kane told reporters that Feudale mistakenly sent emails to Fina at his old email address in the OAG's office and those emails resided on OAG servers.  Feudale's emails were discovered after his removal as a grand jury judge in July of 2013 -- uncovered during the investigation of the Sandusky investigation, conducted by Special Deputy AG, Geoffrey Moulton.  The Moulton Report revealed that emails from the OAG accounts were recovered beginning in November 2013 and continuing into March 2014.

In summary, the OAG's attorneys, including Beemer, Laura Ditka, and James Barker deceived the legal teams of Curley, Schultz, and Spanier regarding the existence of email evidence.

It is extremely rich that Bruce Beemer wrote a memo accusing AG Kathleen Kane of unethical conduct regarding the release of Feudale's so-called "private emails," given his possible misconduct in the PSU 3 case.

Duke Redeaux

Former Durham County, North Carolina, District Attorney Mike Nifong was disbarred for similar misrepresentations to opposing counsel and the court in the Duke Lacrosse case.  

Findings:

94. On December 13, 2006, the Duke Defendants filed a Motion to Compel Discovery: Expert DNA Analysis, detailing their discovery of the existence of DNA from multiple unidentified males on the rape kit items and explaining that this evidence had not been included DSI's written report.  The motion did not allege any attempt or agreement to conceal the potentially exculpatory DNA evidence or test results.   The Motion to Compel Discovery: Expert DNA Analysis was addressed by the Honorable Osmond W. Smith III, Superior Court Judge presiding, at a hearing on December 15, 2006.

95. At the December 15 hearing, both in chambers and again in open court, Nifong stated or implied to Judge Smith that he was unaware of the existence of DNA from multiple unidentified males on the rape kit items until he received the December 13 motion and/or was unaware that the results of any DNA testing performed by DSI had been excluded from DSI's written report.  Nifong stated to Judge Smith in open court:  "The first I heard of this particular situation was when I was served with these reports -- this motion on Wednesday of this week."

96. Nifong's representations that he was unaware of the existence of DNA from multiple unidentified males on the rape kit items and/or that he was unaware of the exclusion of such evidence from DSI's written report, were intentional misrepresentations and intentional false statements of material fact to the Court and to opposing counsel.

Violations of the Code of Ethics

(c) By not providing to the Duke Defendants prior to November 16, 2006, a complete report setting forth the results of all tests and examinations conducted by DSI, including the existence of DNA from multiple unidentified males on the rape kit items and including written or recorded memorializations of Dr. Meehan's oral statements, Nifong:

ii. failed to make a reasonably diligent effort to comply with a legally proper discovery request, in violation of former Rule 3.4(d) of the Revised Rules of Professional Conduct;  

(d) By never providing the Duke Defendants on or after November 16, 2006, and prior to his recusal on January 12, 2007, a report setting forth the results of all tests or examinations conducted by DSI, including the existence of DNA from multiple unidentified males on the rape kit items and including written or recorded memorializations of Dr. Meehan's oral statements, Nifong:

ii. failed to disclose evidence or information that he knew, or reasonably should have known, was subject to disclosure under applicable law, rules of procedure or evidence, or court opinions, in violation of current Rule 3.4(d)(3) of the Revised Rules of Professional Conduct. 

(e) By falsely representing to the Court and to counsel for the Duke Defendants that he had provided all discoverable material in his possession and that the substance of all Dr. Meehan's oral statements to him concerning the results of all examinations and tests conducted by DSI were included in DSI's written report, Nifong made false statements of material fact or law to a tribunal in violation of Rule 3.3(a)(1), made false statements of material fact to a third person in the course of representing a client in violation of Rule 4.1, and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c) of the Revised Rules of Professional Conduct.

(f) By representing or implying to the Court that he was not aware of the existence on rape kit items of DNA from multiple unidentified males who were not members of the lacrosse team and/or that he was not aware of the exclusion of that evidence from DSI's written report at the beginning of the December 15, 2006, hearing, Nifong 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.

Media Defends Corruption

"Duke Lacrosse on Steroids" is an apt description of the Sandusky and Conspiracy of Silence cases because the degree of possible misconduct and the number of players who were likely involved.

Judges, prosecutors, and politicians all have taken part in abusing the so-called system of justice in the Commonwealth.

AG Kathleen Kane, who made good on her promise to investigate the Sandusky investigation, likely had no idea what Fina, Feudale, Beemer, and others feared her investigation would uncover about their misconduct -- and it wasn't pornography.

The media, who should be a watch dog to root out corruption, continues to be a lap dog of the corrupt. Instead of recognizing how officers of the court have compromised the system of justice, it has aligned itself with them.  

To make an analogy, instead of being against the "crack dealers" who sell drugs to children, it has turned against the "undercover cops" who identified them.  As for the children, the media is content to leave them to fend for themselves.

Kane and the corrupt are now engaged in a scorched earth policy in which few will be left unscathed.

Unfortunately, those among the scorched will be every citizen of the Commonwealth who will have the unfortunate circumstance to be abused by this corrupt system of justice.

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

Unsealed documents hammer Feudale, Fina, Baldwin. Lead to more questions.

Recently unsealed documents in the cases of Curley, Schultz, and Spanier reveal possible misconduct by Feudale and alleged obstruction by Baldwin.  They also add to real questions about the evidence in this case.

By
Ray Blehar

While I have not had a chance to get through all of the filings that were unsealed, the few documents I reviewed were not good news for former PSU General Counsel, Cynthia Baldwin, Frank Fina,  and former grand jury supervisory Judge Barry Feudale.

Baldwin Grand Jury Subpoena Compliance

As reported at the November 2013, Upon Further Review presentation,  e-mails that were turned over to Ryan Bagwell by the Pennsylvania Department of Education revealed that Baldwin was allegedly not complying with grand jury subpoenas.  It was unclear which subpoenas were impacted, however the subpoena specifically referenced by Frank Fina's letter was issued before Baldwin was hired as General Counsel.

The email conversations among Ken Frazier, John Surma, and others called for urgency in handling the issue at hand (i.e., throwing Baldwin under the bus). 

Ken Frazier's mention of "issues with the incumbent" and timeline of decisions revealed that the inner circle used Fina's letter to force Baldwin's abrupt retirement in January 2012.  

However, the recently unsealed documents revealed the December 19, 2011 e-mail in its entirety at Exhibit O of  the Supplemental Memorandum Support of Motion to Quash Criminal Complaint (Exhibits G-O).  The e-mail, from Frank Fina to then-PSU Counsel Baldwin castigated her for failing to comply with a subpoena concerning Sandusky's retirement information, requested on December 29, 2010, as well as for a "lengthy history of noncompliance."   

Fina stated that the retirement information had just been received on December 19, after Baldwin had been admonished by the grand jury judge.  The full e-mail follows, however, the subject of the alleged foot-dragging on the turnover of Sandusky's retirement information is easily explained because: 

1) Baldwin was not PSU's General Counsel at the time of the subpoena on January 8, 2010 that requested Sandusky's employment records. 

2) Baldwin  did not provide a copy of the subpoena (duces tecum) issued on December 28, 2010 to Paterno.   The Paterno family turned over some of Sandusky's retirement files to Louis Freeh to assist in his investigated (as documented in the Freeh Report exhibits).  

In summary, Baldwin was unaware of what was turned over in regard to the Sandusky employment records and could easily be duped about the matter. 

Cynthia Baldwin understood her responsibilities to answer subpoenas.  She served on the bench in Allegheny County for 16 years.  Moreover, on July 19, 2010, while Baldwin was legal counsel, PSU revised Policy AD49, which contains language stating:  

All legal documents including subpoenas are to be referred to or routed through The Office of General Counsel. The Office has the prerogative to send them to other parties after receipt. The Office of General Counsel shall establish all procedures for handling and addressing legal documents.   

Contrary to popular belief, Baldwin was not incompetent.  She knew exactly what she was doing and the evidence indicates she was cooperating with the OAG to keep PSU officials in the dark about the Sandusky investigation.   She never told Curley, Schultz, or Spanier about any of the documents or evidence that was turned over and may have actually had a role in altering some of it (according to a well placed source). 

Sandusky's Retirement and Emeritus Status

In an earlier blogpost, I contended that the issue of emeritus status was overblown and that the granting of the title and benefits was not all that unusual, according the PSU OHR official Janine Andrews.  However, the Freeh Report blamed the emeritus status (granted by Spanier) and Sandusky's access to facilities as enabling his crime spree - despite the evidence that no crimes occurred on campus after 2001.

Given that abuse incidents on campus by Sandusky after his retirement were few, there were other issues that may have caused PSU to delay in handing over some of the information.

First, the approval of Sandusky's emeritus status was given by then-PSU Provost Rodney Erickson.  Freeh Report Exhibit 3I reveals that Erickson approved the emeritus position and title on or about August 31, 1999.   

Next, a hand-delivered letter dated June 29, 1999, titled "IN RE: Retirement Perquisites" (Freeh Report Exhibit 3H) was signed off by then-Athletic Director Tim Curley and allegedly approved by Senior Vice President for Finance and Business/Treasurer, Gary Schultz.  However, upon closer inspection of the letter it appears that Schultz may not have been the original signatory.

When viewed at high magnification, it appears that Schultz signature and title block may have been pasted over the original signature.  Note that some of the text has "aliasing" (or shadowing) while other text is very clear. In other words, this is yet another document of questionable provenance that has been discovered in the Freeh Report. 

It is also notable that former Department of Homeland Security Secretary Michael Chertoff identified documents of questionable provenance in his review of Freeh's report on the Wynn Resorts. 

Once again, this is not proof of evidence tampering, but it is suspicious and it raises the question:  Was Schultz's signature put on this document in order to "implicate" him, along with Curley and Spanier, in the granting of emeritus status (and related benefits) to Sandusky? 

While it is well established that Baldwin was not being forthright in gathering evidence in responses to the various subpoenas during this case.  However, the bigger question that must be answered is whether or not the information she turned over, such as the Schultz document and the e-mail evidence, was authentic.

Feudale's and OAG Misconduct

In Exhibit K of the Supplemental Memorandum Support of Motion to Quash Criminal Complaint (Exhibits G-O)​, Feudale made a minimum of two false statements with regard to his knowledge of the circumstances of the case.  

First, Feudale stated (at k., page 9)  he was not aware that Spanier was the subject of the investigation and was there to simply move the case along.

That statement appears to be false, based on the transcripts of Spanier's 13 April 2011 colloquy.  

Prior to Spanier taking the stand, Fina concluded an in-camera argument regarding the justification for the expansive scope of a subpoena for PSU e-mails from 1997 and earlier. 

During that argument, Fina stated that Curley and Schultz had been informed about the incident witnessed by Mike McQueary that was of a sexual nature and the men met with Spanier to discuss possible actions.  Fina stated the men chose to report the incident to the nonprofit involved, but not report the incident to the proper authorities - a summary offense.

Fina then made this statement implying that PSU officials were among "quite a number of people" who knew (i.e., "notorious") about Sandusky's conduct.