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.

By
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.