Thursday, December 26

Does Fina's in camera argument reveal earlier possession of Schultz e-mails?

Prosecutor Frank Fina's references to e-mails containing metaphors and "illusions" (sic) to Jerry Sandusky, as well as Corro's testimony, provides evidence that the OAG had versions of the 1998 and 2001 e-mails prior to April 13, 2011.

Ray Blehar

The statements of prosecutor Frank Fina on April 13, 2011 appear to negate the obstruction of justice charges filed against the three Penn State administrators in the so-called Conspiracy of Silence.

The November 2012, Conspiracy of Silence grand jury presentment (pages 38-39) stated that Spanier, Curley, and Schultz were charged with obstruction of justice for failing to turn over documents and e-mails  that would have been responsive to Subpoena 1179.  Former Attorney General, Linda Kelly, charged that "pertinent emails and other key evidence were never turned over until April 2012, after these men had left their jobs."

However, the April 2011 statements made by Frank Fina during his in camera response to Baldwin's oral motion to quash the subpoena indicate his contemporaneous knowledge of what Louis Freeh called "the most important documents in this investigation."  That reference was to the e-mails between Schultz, Spanier, and Curley that Freeh  lied about making "independent discovery" of when he grandstanded at the July 2012 press conference.

This revelation of Fina's knowledge of the 1998 and 2001 e-mail evidence appears to rip the cover off of the suspected conspiracy/collusion between the OAG and Freeh -- and perhaps PSU and the NCAA.

First and foremost, Fina argument is in support of the subpoenas from 1997 and earlier, thus you can deduce that e-mails from 1998 and forward are already in the state's possession.

In order to bolster his argument, Fina described the characteristics of "metaphors and masked comments" that were found in the e-mails from 1998 and 2001.

  • On page 15, lines 1-4 of the Spanier colloquy, Fina discusses those characteristics as follows: "they write off-hand comments, they write masked comments and metaphors may prove very worthwhile for us to review and see if there is any information related to what we are looking for."
  • On page 26, lines 6-10, Fina futher justified the request that PSU provide "any of those e-mails, subsets of those e-mails that relate in any fashion, whether they are illusions (sic) or direct statements to Mr. Sandusky, that those would be culled out by the University and provided directly to the Office of Attorney General."  

In 1998, a metaphor -- the word "Coach" -- was used on two occasions to describe an individual involved in the discussion about the Sandusky investigation.  In 2001, the metaphors "individual," "agency," and "other one" were used to describe persons and organizations involved.

It appears, based on Fina's statements, that the e-mail evidence giving rise to the obstruction of justice charges was handed over in March or April of 2011, nearly a year before the OAG and Freeh claimed they initially possessed them.

One of the unwritten rules in this investigation is not to put much stock in the dates provided by the OAG.  Dates appear to be changed in an attempt to explain away the foot-dragging that went down in the Sandusky  investigation.

Baldwin foot-dragging

While it is true that none of the three men provided any e-mail evidence to the OAG, it is anything but certain that they were told to search for the information by then-PSU General Counsel Cynthia Baldwin.  Given that Subpoena 1179 asked for e-mails about the 2002 incident, it is difficult to explain why Spanier, Curley, and Schultz all testified that the incident occurred in different years.

Someone's not telling the truth, and that person is likely Baldwin.

According to the testimony of John Corro of the PSU IT Department,  Baldwin did not approach him about searching for the e-mails requested by the Subpoena until March 2011.  The delay by Baldwin was likely part and parcel with the overall foot-dragging of the Sandusky investigation, which really was not undertaken in earnest until Spanier and Corbett sparred over PSU's budget.

Up until that point, the newly hired PSU lawyer's likely mandate was to stonewall the investigation to ensure nothing about crimes related to Jerry Sandusky were revealed.  Baldwin's history as Vice-Chair and Chair of the PSU BOT, as well as her experience working for former AG LeRoy Zimmerman, and appointment to the bench by former Governor Rendell, indicated that she understood the stakes involved in this investigation.  

Baldwin's and the OAG's best course of action was to avoid prosecuting Sandusky, but it is highly likely that Corbett eventually let his emotions get the best of him and decided to use the arrest of Sandusky to have Spanier fired.

When Corbett "threw the switch" 27 months into the investigation, everyone was put behind the 8 ball in terms of explaining why the arrest took so long.

OAG Foot-Dragging

Psychologist Mike Gillum, in the book Silent No More, stated that Deputy Attorney General Jonelle Eschbach and Trooper Scott Rossman informed him in June 2009 that had received information about a 1998 incident, but would not share details with him.

According to press reports, the police were tipped to the 1998 incident after Sara Ganim gave contact information of the investigators to the mother of Victim 6 in November or December of 2010.  After that, it took police until January 3, 2011 to get the police file from PSU.

Gillum also wrote that Eschbach told him in March 2010 that an arrest was imminent, but then reversed course and said that her boss, Tom Corbett, had nixed the arrest.  In May 2010, six months before Mike McQueary would be interviewed, Eschbach told Gillum other victims had been identified.  The public records state otherwise, considering the "unknown" victim in the McQueary incident reported in November 2010 became Victim 2.

At a June 2010 meeting, Eschbach promised an arrest in the summer - but that never came.  As Gillum had pointedly argued, Corbett was delaying the arrest until after the election.

Gillum appears to be partially right -- the delay was about election and a few more things.

Corbett and the OAG needed that time to ensure that the case against Sandusky not only resulted in a conviction, but they needed to construct a story that would (falsely) blame PSU's lack of cooperation and attempted cover as the reason behind the delay of the investigation.  The story also had to deflect attention away from DPW's and The Second Mile's failures to protect children.

As more facts are revealed, that story is falling apart under its own weight.

From the fantastic story of Agent Sassano determining the date of the McQueary incident by using TV Guides to the factually challenged testimony of janitor Ronald Petrosky, lie after lie is being revealed.

The collapse of this travesty of justice is not a matter of if, but a matter of when.

Monday, December 23

Breakdown of Original Footage of the Immaculate Reception (41st Anniversary)

 And I'll throw in what happened after the catch because that's fun too.

Ray Blehar

As the play gets underway, Franco stays in to "block" on the play.

With no one to block, Franco turns to see two Raiders bearing down on Quarterback Terry Bradshaw.

Instinct takes over and Franco released to become a receiver.

The "Collision" between Tatum and Fuqua.  Physics experts confirm that the trajectory of the ball resulted from it hitting Tatum, who had forward momentum.

 Ball leaves the frame and then Franco re-enters the frame carrying the football (below).

Click here for NBC original footage.

Happy 41st Anniversary -- Immaculate Reception!

Sunday, December 22

Who's telling the truth: Baldwin or everyone else?

This is not a case of he said, she said, with Spanier and Baldwin; it's a case of Baldwin's word against everyone else's.

Ray Blehar

Attorney Elizabeth Ainslee, who represents former Penn State President. Graham Spanier, released a rebuttal to the grand jury testimony Cynthia Baldwin.  The embattled former PSU General Counsel was quoted in several media reports, alleging her former boss, Spanier, "was not a man of integrity" and had "lied to her."

Spanier's attorney shot back that Baldwin's testimony was "shamefully inaccurate," that she was testifying in an attempt to avoid her own prosecution (likely for obstruction of justice) and that she had signed a proffer letter with the OAG.  Ainslee included a copy of Baldwin's interview from the Office of Personnel Management for Spanier's security clearance, in which Baldwin said she trusted Spanier as a person and also trusted his judgment.  Furthermore, she stated Spanier "was a man of integrity" and "was forthcoming and open with the BOT."

Baldwin's lawyer, Charles DeMonaco, stated Baldwin's opinion changed after she read the Freeh Report and learned of the e-mail evidence and other documents.

“Much like the public at large, Justice Baldwin learned for the first time in the summer of 2012 about the conduct of the defendants as a result of documents and e-mails which were discussed for the first time with the release of the Freeh Report in July 2012."

And that is where the story breaks down.  This is not a case where Baldwin had a revelation about Spanier's honesty after the Freeh Report was issued and that her honesty should be weighed on that revelation.

It is a case where nearly all of Baldwin's grand jury testimony was refuted by practically everyone else who has testified in the case.  Everyone includes John Corro, Braden Cook, Frank Fina, Lisa Powers, the PSU Board of Trustees, Anthony Sassano, Gary Schultz, and Graham Spanier.  

And even herself.

Corro, Cook, and Fina Refute E-mail Stories

According to the testimony of John Corro, of the PSU IT Department, Baldwin approached him in March or April 2011 and showed him part of Subpoena 1179, which requested all e-mails back to 1997.   Corro made no mention of the "preservation order" Baldwin testified about on page 16, lines 13-25.

According to Baldwin, she sent the order to preserve all e-mails and documents related to the Sandusky case to  all concerned parties at PSU.  This "preservation order" did not surface in any of the e-mails or documents provided as evidence in the Freeh Report nor was it mentioned in the presentment that added charges for  Curley, Schultz, and Spanier.

The November 2012, "Conspiracy of Silence" grand jury presentment stated that Subpoena 1179 was allegedly provided to PSU/Baldwin in December 2010 -- although other evidence obtained in the investigation appears to set the date as October 2010.  Nevertheless, Baldwin had the subpoena in her possession for several months before finally deciding to request that the IT department perform e-mail searches.

Also, according to the subpoena, the e-mail evidence was to be turned over by January 10, 2011.  Baldwin missed this date without filing a motion to quash the subpoena.  It was only after Baldwin was in the judge's chambers on April 13 that she raised an oral motion to quash.  Interestingly, the OAG did not file a contempt  motion from the point that Baldwin had missed the due date until April 13, 2011.  At the same session, Baldwin then agreed to turn over the e-mails, which she said would be on a single USB key, to the OAG that Friday.

John Corro testified that the provided three USB keys to Baldwin, one containing all the e-mails and two containing information based on key word searches (e.g., Schultz, Paterno, Curley, Spanier, etc).   However, Corro's most important testimony was that Schultz had taken special effort to preserve his e-mails dating from before 2004 - the system switchover at PSU - so that they would be migrated to the new system.  As a result of Schultz's actions, the most important e-mails in the case were easily recoverable from Schultz's e-mail archive.

There is little doubt that the e-mails that Baldwin stated she didn't see until July 2012 came into her possession in March or April 2011.   Thus Baldwin appears to be claiming she never saw or examined the e-mails that the PSU IT department turned over.

 But that story just doesn't hold water based on the testimony of Braden Cook.

According to OAG computer forensic expert, Braden Cook testified that all evidence reviewed by his unit was provided back to PSU for privilege review before being admitted into evidence.   Someone at PSU saw those e-mails long before the Freeh Report was published and, as legal counsel, Baldwin would have been responsible for approving their release.

Finally, Deputy Attorney General and chief prosecutor, Frank Fina, noted during the in camera argument about Baldwin's oral motion to quash Subpoena 1179, the use of "masked comments and metaphors" in e-mails.  Louis Freeh, in his report, called it "coded" language.  Fina's comment suggests that he was privy to the e-mail evidence prior to Baldwin's official "turnover" on 15 April 2011.

Powers, BOT, and Sassano Refute Baldwin on Seriousness of Investigation

On page 61, lines 7-11 of Baldwin's grand jury testimony, she stated that  "there was no doubt in my mind, I mean, that Mr. Sandusky would be part of a presentment and the only issue was how many would be involved in that presentment.

Lisa Powers testimony from July 2013 is in direct contradiction of Baldwin and backs Spanier's story that Baldwin downplayed the seriousness of the investigation.  After receiving an inquiry from Jan Murphy of the Patriot News in October 2010, Powers reached out to Baldwin for information.  Baldwin, as she did with Spanier, told her it was the fourth grand jury that had looked into Sandusky and that the case was a "fishing expedition."  See transcript below.

A number of BOT members were quoted in a January 18, 2012 New York Times article about the May 2011 briefing on the Sandusky investigation that was provided by Spanier and Baldwin.  Surma stated the briefing was so brief no one remembered it or asked any question.  Another BOT member, who spoke on the condition of anonymity, said that Baldwin downplayed the seriousness of the investigation.  The member recalled it as "no big deal."

Finally, at the Sandusky trial, OAG Agent Anthony Sassano remarked that PSU was slow to get information to them in response to subpoenas.  Sassano specifically mentioned Subpoena 191 for the names of the Office of Physical Plant employees (janitors) that was requested in May 2011.

Schultz and the Schultz "Secret" File

If there is one piece of evidence that exonerates Penn State in this case, it is the so-called "secret file" of Gary Schultz.  While the file was irresistible to the prosecutors and Louis Freeh because it contained bombshell language such as "Pandora's Box" and "sexually inappropriate," it also contained considerable evidence that the DPW caseworkers overlooked at least a dozen signs of possible child sexual abuse during their 1998 investigation of Sandusky.

During Baldwin's grand jury testimony she made several false statements concerning Schultz and the "secret" file.  First, she stated (page 13, lines 11, 12) she could not immediately serve the subpoena to Schultz because he was "on vacation." The fact of the matter is that Schultz was retired and that the subpoena for documents could have been directed to numerous current PSU employees.  Schultz was not rehired by PSU until September 2011 and Baldwin made no statement to the effect that she reminded Schultz to look for documents after he was re-employed.

Baldwin also stated she had never heard of and that Schultz never mentioned the file to her.  Again, this is clearly refuted by the fact that Schultz testified to the grand jury that he may have had a file on Sandusky in his office -- and Baldwin was present during his testimony.  Schultz, in an affidavit, also stated that he informed Baldwin of the possible presence of the file in his old office, which was being occupied by Al Horvath.

Paterno Subpoena And Lack of Seriousness

While we're on the topic of subpoenas, Baldwin also falsely claimed (page 13, lines 10, 11) she could not provide the subpoena to Curley or Paterno because they were at a bowl game - and had asked Spanier to do so on her behalf.  However, according to Scott Paterno, Baldwin was in attendance at the Outback Bowl and was staying in the same hotel as Spanier.  When Scott Paterno went to Baldwin to obtain his father's subpoena to testify at the grand jury, Baldwin told him that he "was making too big a deal out of this."

According to another source, who spoke on the condition of anonymity, Baldwin was quite upset that Paterno had retained his own counsel for his Sandusky grand jury appearance.

"Yes, I represent the University, solely."

Of all the statements that Baldwin made at the grand jury, the statement that may be the most important in this case was said to Judge Feudale in his chambers, when Graham Spanier was not present.   Baldwin stated that she represented "the University solely."

That statement alone puts Baldwin's credibility in serious doubt because, as an attorney, she knew or should have known, that she should not have entered into the grand jury room when Spanier testified.  Moreover, if Baldwin believed that she was permitted to sit in on the testimony of Spanier, Curley, and Schultz, while solely representing Penn State, why didn't she enter the grand jury room when Joe Paterno testified?  Paterno testified on the same day, January 12, 2011, as Curley and Schultz.

It's a rhetorical question, of course.

Baldwin knew she could not get away with sitting in on Paterno's testimony with his counsel present.  Joshua Locke and Scott Paterno would have called her (and Judge Feudale) on it.

One thing is more than certain in this case, Cynthia Baldwin's behavior was highly unethical and dishonest when she let Spanier believe she was representing him as counsel -- when just moments before said she told the judge she was not.

Cynthia Baldwin's dishonesty appears to be a matter of public record.

Thursday, December 19

Baldwin Highlights of Grand Jury Testimony from Twitter

By Ray Blehar, Jimmy W, and No.1 Lion 99

Bold Black indicates erroneous or contradicted statement of Baldwin's.  There are many.
Red type indicates important statements from Frank Fina.

The biggest news to come out of the proceeding was that Sandusky was accused of a sexual abuse  in 1984.  The OAG didn't find any police record of it.  To date, few media outlets have done little more than make mention of it.

A full summary of the proceeding will appear in this space soon.

  1. RT Baldwin GJT, P14, L12,13: Baldwin says Spanier told her to go to GJ with him during Jan 2011 mtg. Spanier was not subpoenaed at the time.
  2. RT BaldwinGJT: P13, L11,12: Baldwin stated that RETIRED Gary Schultz was "on vacation" when she received the subpoena for his GJ appearance
  3. CB said gathering of info back to 1997 was taking time, but would have it in 2 days. Corro tasked in March. S1179 was issued 12/11?
  4. Corro produced 3 USBs for CB. CB said one USB 2b provided on 4/15. Possible one was provided on 4/13/11 of just Spanier's e-mails.
  5. If e-mails were due Jan 10 & CB didn't file motion to quash, where was GJ Contempt motion? Something fishy here?
  6. Sassano trial testimony: "And Penn State...was not very quick in getting us our information." Ref. Sub. 191 for names of janitors.
  7. Spanier met with OAG on 3/22/11, before his 4/13/11 GJ testimony. When did Baldwin have her dress rehearsal?