IN
THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH
OF PENNSYLVANIA, :
: No. CP-22- CR-3615-2013
:
:
v. :
:
GRAHAM
B. SPANIER, :
:
Defendant. :
DEFENDANT GRAHAM SPANIER’S POST HEARING
MEMORANDUM
AND NOW, defendant
Dr. Graham B. Spanier, by and through the undersigned counsel, respectfully
submits this post hearing memorandum.
Identification of Pleadings
Dr. Spanier has
submitted to this Court the following pleadings that raise claims related to
his representation as a grand jury witness:
1. Motion to Preclude Testimony of
Attorney Cynthia Baldwin, filed November 20, 2012, requesting preclusion of Ms.
Baldwin’s testimony at the preliminary hearing because her testimony would
violate the attorney-client privilege.
The Motion was denied as premature by the Court’s January 17, 2014
Order.
2. Motion to Quash Criminal Complaint,
filed May 16, 2013, requesting quashal of the Perjury, Obstruction, and Conspiracy
to Commit Perjury and Obstruction charges on four grounds stemming from Ms.
Baldwin’s conduct: breach of the
attorney-client privilege, deprivation of counsel, violation of grand jury
secrecy, and violation of the right to effective, conflict-free counsel. The Motion further requested quashal of the
remaining charges (Child Endangerment, Failure to Report, and Conspiracy to
Commit Child Endangerment) because they are barred by the applicable statutes
of limitation, they violate the Due Process and Ex Post Facto Clauses of the United States and Pennsylvania
Constitutions, and/or because neither the Child Endangerment nor the Failure to
Report statute applies to Dr. Spanier as a matter of law. The Motion is currently pending.
3. Supplemental Memorandum in Support of
Motion to Quash Criminal Complaint, filed December 4, 2013, supplementing, in
light of newly-disclosed evidence, the Motion’s arguments for the requested
relief based on Ms. Baldwin’s conduct, and requesting quashal of all of the
criminal charges due to prosecutorial misconduct. The Motion is currently pending.
Dr. Spanier has
also submitted to the Grand Jury Supervising Judge the following pleadings that
raise claims related to his representation as a grand jury witness:
1. Motion to Quash Presentment, filed
November 26, 2012, requesting quashal of the Presentment because of the breach
of the attorney-client privilege, deprivation of counsel, and violation of
grand jury secrecy that resulted from Ms. Baldwin’s conduct. The Motion was denied for lack of
jurisdiction on April 9, 2013.
2. Supplemental Motion to Quash
Presentment, or, in the Alternative, to Strike Defendant’s Grand Jury
Testimony, filed January 18, 2013, requesting quashal of the Presentment or the
striking of Dr. Spanier’s grand jury testimony based on the arguments presented
in the original Motion and because Dr. Spanier was deprived of effective
counsel due to Ms. Baldwin’s multiple conflicts of interest. The Supplemental Motion was denied for lack
of jurisdiction on April 9, 2013.
3. Reply to Commonwealth’s Answer to
Motion to Quash Presentment, filed January 18, 2013, responding to the
Commonwealth’s January 2, 2013 Answer to Motion to Quash Presentment and
requesting quashal of the Presentment.
Proposed Findings of Fact
1.
Pursuant to Notice of Submission of
Investigation No. 1, the Thirtieth Statewide Investigating Grand Jury conducted
an investigation into reported sexual assaults of minor male children by Gerald
A. Sandusky over a period of years. The
Thirty-Third Statewide Investigating Grand Jury continued the investigation
when the Thirtieth’s term expired.
Presentment at 1.
2.
After the testimony of former Penn State
University Assistant Coach Michael McQueary in December 2010, the grand jury
expanded the scope of its investigation beyond the activities of Sandusky, and
began to examine the responses of Penn State and its high-level employees,
including Dr. Spanier, to the incident Mr. McQueary testified to having
witnessed. 4/13/11 Proceedings Trans. at
8-13.[1]
3.
In late December 2010, Attorney Cynthia Baldwin,
then General Counsel to Penn State, advised Dr. Spanier that Gary Schultz,
Timothy Curley and Joe Paterno had been subpoenaed to testify before a grand
jury investigating Sandusky. Spanier
Aff. ¶ 2; 10/26/12 Trans. at 12-13.
4.
Ms. Baldwin advised Dr. Spanier that she would
represent Messrs. Schultz and Curley in connection with their grand jury
appearances, but that Mr. Paterno had retained another attorney. Spanier Aff. ¶ 4. Ms. Baldwin stated that it was Mr. Paterno’s
right to obtain his own attorney, but attributed his decision to the
“interference” of his son, who was a lawyer.
Id.
5.
Messrs. Schultz and Curley testified before the
grand jury on January 12, 2011. They
were first brought before then-Grand Jury Supervising Judge Barry F. Feudale to
be instructed as to their rights and sworn in as grand jury witnesses. The colloquy began with the following
exchange:
MR. BARKER [from the Office of Attorney General]:
. . . . We have some
witnesses to be sworn, Mr. Curley and Mr. Schultz.
JUDGE FEUDALE:
Represented by?
MS. BALDWIN: My name is
Cynthia Baldwin, general counsel for Pennsylvania State University.
JUDGE FEUDALE: Will you
be providing representation for both of those identified witnesses?
MS. BALDWIN: Gary is
retired by was employed by the university and Tim is still an employee.
1/12/11 Colloquy Trans. at 7-8.
6.
Judge Feudale advised Messrs. Schultz and Curley
that “if you’re uncertain as to whether you may lawfully refuse to answer any
question or if any other problem arises during the course of your appearance
before the Grand Jury, you may stop the questioning and appear before me,
either alone or in this case with your counsel, and I will rule on that
matter whatever it may be.” 1/12/11
Colloquy Trans. at 10 (emphasis added).
7.
Following the colloquy, Deputy Attorney General
Jonelle Eshbach made an oral motion “requesting that both our agent as well as
the State Trooper be permitted to be present in the room.” 1/12/11 Colloquy Trans. at 11-12. No other motions were presented.
8.
At the outset of Mr. Curley’s grand jury
testimony, he was asked by Ms. Eshbach if he was represented by counsel. Mr. Curley identified Ms. Baldwin as his
attorney, as follows:
Q: You have counsel with
you?
A: Yes, I do.
Q: Would you introduce
her, please?
A: My counsel is Cynthia
Baldwin.
1/12/11 Curley Trans. at 3.
9.
Ms. Eshbach referred to Ms. Baldwin as Mr.
Curley’s attorney when asking him to step outside to allow the grand jury to
confer. 1/12/11 Curley Trans. at 25-26
(“Do you want to step outside, please, with your counsel and we will find out
if the Grand Jury has any additional questions for you,” followed by a notation
that the witness and counsel left the room).
10.
Mr. Schultz likewise was asked by Ms. Eshbach
whether he was represented by counsel when he testified before the grand jury
and he identified Ms. Baldwin as his attorney:
Q: You are accompanied
today by counsel, Cynthia Baldwin; is that correct?
A: That is correct.
1/12/11 Schultz Trans. at 3.
11.
Mr. Schultz also consulted with Ms. Baldwin
during his testimony. 1/12/11 Schultz
Trans. at 33.
12.
Ms. Eshbach similarly asked Mr. Schultz to “step
out with counsel and we will see if the Grand Jury has any more
questions.” 1/12/11 Schultz Trans. at
30-31.
13.
Ms. Baldwin later said through counsel that, as
to her attendance at Messrs. Schultz and Curley’s grand jury appearances, she
did not represent either man, but (1) she attended with them because “[a]s
general counsel, she felt a responsibility to represent and understand—for the
university’s interests—their testimony”; and (2) “she would not feel it
appropriate to speak up and correct [the witnesses’ belief that she represented
them] out of deference to the grand jury process.” Sara Ganim, Penn State counsel Cynthia Baldwin’s role before grand jury could
affect Tim Curley and Gary Schultz’s perjury case, experts say, The Patriot-News, Feb. 2, 2012,
http://www.pennlive.com//.ssf///____cynth.html (last visited Jan. 6, 2014)
(quoting Attorney Lanny Davis, who was authorized to speak for Ms.
Baldwin).
14.
Dr. Spanier was interviewed by the Office of the
Attorney General in March 2011. Spanier
Aff. at ¶ 5. Ms. Baldwin, still General
Counsel to Penn State, accompanied Dr. Spanier to that meeting as his attorney
and took notes. Id.
15.
Shortly thereafter, Dr. Spanier was subpoenaed
to testify before the grand jury.
10/26/12 Trans. at 52-54.
16.
Ms. Baldwin advised Dr. Spanier that he was
entitled to a separate attorney, but she did not encourage him to retain one or
explain why he might need one. Spanier
Aff. ¶ 7. Based on Ms. Baldwin’s
representations, Dr. Spanier believed that Ms. Baldwin could and would
represent him and act in his best interests.
Id.
17.
In proceedings just before Dr. Spanier’s April
13, 2011 testimony, Ms. Baldwin and OAG representatives appeared before Judge
Feudale in chambers to discuss an objection to the scope of a grand jury
subpoena for documents that had been issued to Penn State. 4/13/11 Proceedings Trans. at 2-7. Dr. Spanier was not present during these
proceedings. Id. at 2-28.
18.
After hearing Ms. Baldwin’s objection to the
scope of the subpoena, Judge Feudale ordered Deputy Attorney General Frank Fina
to provide an in camera proffer of
the factual basis for the grand jury’s request for all emails from certain Penn
State employees, including Dr. Spanier, from 1997 to the present. 4/13/11 Proceedings Trans. at 6-7.
19.
During the in
camera discussion, Mr. Fina explained to Judge Feudale that following Mr.
McQueary’s testimony, the grand jury began to focus on the University’s
response to Mr. McQueary’s allegations.
4/13/11 Proceedings Trans. at 7-10.
20.
Mr. Fina described to Judge Feudale what the OAG
believed to be inconsistencies between Mr. McQueary’s testimony on one hand,
and the testimonies of Gary Schultz (then retired Senior Vice President for
Business & Finance) and Tim Curley (then Athletic Director) and the
interview statements of Dr. Spanier on the other. 4/13/11 Proceedings Trans. at 7-13.
21.
Mr. Fina told Judge Feudale that the OAG
believed there to be “obvious credibility issues” with the administrators’
statements and “believe[d] that there could be a situation here where people
are endeavoring to cover up their knowledge of Mr. Sandusky’s misconduct” in
order to shield themselves and Penn State from embarrassment. 4/13/11 Proceedings Trans. at 10, 13.
22.
Although Ms. Baldwin was not present during the in camera proffer to Judge Feudale
explaining the grand jury’s focus on Dr. Spanier and Messrs. Schultz and
Curley, she had attended the grand jury testimonies of Messrs. Schultz and
Curley in which each was asked about the University’s response to Mr.
McQueary’s allegations. See 1/12/11 Schultz Trans. at 3-35;
1/12/11 Curley Trans. at 3-28. Both Mr.
Schultz and Mr. Curley were asked about Dr. Spanier’s role in the
decision-making process after Mr. McQueary’s report. 1/12/11 Schultz Trans. at 17-18; 1/12/11
Curley Trans. at 8, 22-23.
23.
During the in
camera discussion, Judge Feudale referred to Ms. Baldwin as “counsel for
Mr. Spanier,” while Mr. Fina referred to Ms. Baldwin as “Penn State’s
Counsel[ ].” 4/13/11 Proceedings
Trans. at 17, 20.
24.
At the close of the in camera discussion, Judge Feudale, satisfied with Mr. Fina’s
proffer regarding the scope of the subpoena, then invited Ms. Baldwin back into
chambers and advised her that the OAG had presented a factual basis for the
subpoena and that the University’s response would be kept in a secure fashion. 4/13/11
Proceedings Trans. at 21-28. Ms. Baldwin
clarified that her objection pertained only to the subpoena for Penn State
documents, not to the subpoena for Dr. Spanier’s testimony, and therefore his
testimony could proceed. Id. at 23-24.
25.
The final statements by Judge Feudale and Ms.
Baldwin before Dr. Spanier was brought in to be sworn as a witness were as
follows:
JUDGE FEUDALE: . . . . Cindy, just for the record, who do you
represent?
MS. BALDWIN: The
university.
JUDGE FEUDALE: The
university solely?
MS. BALDWIN: Yes, I
represent the university solely.
Id. at 28.
26.
Judge Feudale permitted Ms. Baldwin to remain in
the proceedings and be present for Dr. Spanier’s grand jury testimony. 4/13/11 Proceedings Trans. at 28-34; 4/13/11
Testimony Trans. at 1-43.
27.
Dr. Spanier was then brought into Judge Feudale’s
chambers and given an instruction on his rights as a grand jury witness. 4/13/11 Proceedings Trans. at 28-34. Judge
Feudale instructed Dr. Spanier that:
In other words, if you’re uncertain as to whether you may
lawfully refuse to answer any question or if any other problem arises during
the course of your appearance before the Grand Jury, you have the right to stop
the questioning and appear before me, either
alone or, of course, in this case with your counsel, and I will rule on that matter
whatever it may be.
Id. at 30-31 (emphasis added).
28.
No one present during the in-chambers
proceedings advised Dr. Spanier that Ms. Baldwin had stated, outside his
presence, that she represented only Penn State.
4/13/11 Proceedings Trans. at 28-34.
29.
After Dr. Spanier’s colloquy, Mr. Fina made an
oral motion pursuant to Pennsylvania Rule of Criminal Procedure 231(B) that OAG
Agent Anthony Sassano and Pennsylvania State Police Trooper Scott Rossman be
permitted to be present in the grand jury session. 4/13/11 Proceedings Trans. at 33-34. Mr. Fina did not make an oral motion that the
attorney for an interested third party, Penn State, be permitted to attend Dr.
Spanier’s grand jury testimony. Id.
30.
Dr. Spanier then testified before the grand jury
and, after being asked by Mr. Fina whether he was represented by counsel,
identified Ms. Baldwin as his counsel:
Q: Sir, you’re
represented by counsel today?
A: Yes.
Q: Could you just
identify counsel?
A: Cynthia Baldwin
sitting behind me.
4/13/11
Testimony Trans. at 3.
31.
Neither Ms. Baldwin nor OAG representatives
corrected Dr. Spanier’s identification of Ms. Baldwin as his attorney. 4/13/11 Testimony Trans. at 3.
32.
During Dr. Spanier’s testimony, Ms. Baldwin
interrupted the proceedings to consult with Dr. Spanier and to make
clarifications on his behalf. 4/13/11
Testimony Trans. at 8. Neither Mr. Fina
nor anyone else challenged Ms. Baldwin’s participation during the
proceedings. Id.
33.
Also during Dr. Spanier’s testimony, Mr. Fina
requested that Dr. Spanier and Ms. Baldwin leave the grand jury room together
to give the grand jurors an opportunity to confer. 4/13/11 Testimony Trans. at 37. Neither Agent Sassano nor Trooper Rossman was
asked to leave the grand jury room. Id.
34.
Ms. Baldwin remained Penn State’s general
counsel until June 30, 2012. 10/22/12
Trans. at 2.
35.
Ms. Baldwin was herself subject to potential
criminal liability for her conduct in responding to OAG subpoenas in the course
of the grand jury investigation. See 12/19/11 Letter, F. Fina to C.
Baldwin at 2 (warning Ms. Baldwin of the OAG’s “intent to pursue contempt and
any other appropriate measures applicable to obstruction against the
institution and those individuals responsible for [non-compliance with
subpoenas],” and noting that Ms. Baldwin “was specifically admonished and
warned by the Supervising Judge of the grand jury” about non-compliance with a
previous subpoena related to the Sandusky investigation).
36.
At some point during the grand jury
investigation, Ms. Baldwin obtained her own attorney and began conversing with
OAG representatives about providing them a proffer. 10/22/12 Trans. at 2.
37.
Ms. Baldwin had the benefit of knowing the
content of Dr. Spanier’s grand jury testimony when she engaged in proffer
discussions with the OAG. 4/13/11
Testimony Trans. at 1-43.
38.
On October 22, 2012, OAG representatives
appeared before Judge Feudale, along with Ms. Baldwin’s attorneys and outside
counsel for Penn State, to discuss Ms. Baldwin’s anticipated appearance before
the grand jury. 10/22/12 Trans. at 1-2.
39.
Mr. Fina advised Judge Feudale that the OAG
intended to elicit testimony from Ms. Baldwin about her role in the grand jury
investigation. 10/22/12 Trans. at
2-6. Mr. Fina stated that Penn State had
waived the attorney-client privilege as to its General Counsel’s efforts to
comply with the grand jury investigation, but that the OAG had received letters
from attorneys for Messrs. Schultz and Curley, who by that point had been
charged in a November 4, 2011 criminal complaint, claiming that communications
between their clients and Ms. Baldwin in preparation for and after their grand
jury appearances were privileged. Id.
40.
Mr. Fina told Judge Feudale that the OAG was
“willing to put Miss Baldwin in the grand jury without addressing any of the
issues related to the testimony of Mr. Schultz and Mr. Curley and conversations
she had with them about that testimony and put that—put those matters on hold
until we get a Court determination regarding the privilege and we can address
that later on.” 10/22/12 Trans. at
6.
41.
Attorney Michael Mustokoff, Penn State’s outside
counsel then indicated that “issues have legitimately arisen with regard to the
substance and perception of the representation by Justice Baldwin of Mr.
Schultz and Curley that have us believing that the most prudent course is for
the Court to make an ultimate determination as to whether that aspect of the
privilege should be waived. This is
something that Mr. Fina and I have discussed at length and believe that the
situation is sufficiently murky to require the wisdom of this Court, if not
Solomon, to resolve.” 10/22/12 Trans. at
6-7. Mr. Fina expressed his agreement
with this statement. Id. at 7.
42.
Penn State’s outside counsel thus stated that a
judicial determination regarding Ms. Baldwin’s representation of Messrs.
Schultz and Curley was necessary before Penn State would waive the privilege
with respect to Ms. Baldwin’s communications with Messrs. Schultz and Curley. 10/22/12 Trans. at 6-7; see also 10/19/12 Ltr., M. Mustokoff to F. Fina (stating that Penn
State’s privilege waiver did not include “any communications between Justice
Baldwin and Messrs. Schultz and Curley”).
43.
Mr. Fina then stated to Judge Feudale that
“[t]he Commonwealth, at this point, I think, is going to take a very clear
position as does Miss Baldwin that she was University Counsel and she was not
individually representing those two gentlemen. . . . There may well be claims down the road by Mr.
Farrell, Miss Roberto, and perhaps even counsel for Graham Spanier; but that
is, you know, the risk that the Commonwealth is ready to bear because we
believe that we are soundly within the waiver.”
10/22/12 Trans. at 11.
44.
Judge Feudale told Mr. Fina that he was
“satisfied based on what you placed on the record that [Ms. Baldwin] is clearly
able to proceed on testimony with the stipulation that you communicated that
you’re not going to get into an inquiry as to her representation and what that
meant with regard to Mr. Curley, Mr. Schultz, and perhaps, as you said, also
Mr. Spanier.” 10/22/12 Trans. at
11-12.
45.
Judge Feudale further remarked that “[b]ased on
the stipulation, I’m satisfied that the testimony can go forward without any
inappropriate inferences to be drawn because I don’t think that the concern
that they may have impacts the investigative role with regard to Sandusky and
the response of the Office of General Counsel to the various subpoenas and
Orders of Court and that is the narrow focus of the testimony.” 10/22/12 Trans. at 13-14.
46.
Mr. Fina’s and Judge Feudale’s remarks evidenced
their understanding that although Dr. Spanier had not been criminally charged
as of that date, Dr. Spanier would likely raise the same attorney-client
privilege argument that had been raised by counsel for Messrs. Schultz and
Curley. 10/22/12 Trans. at 11, 13-14.
47.
Dr. Spanier was not advised that Ms. Baldwin was
going to testify before the grand jury, and therefore he had no opportunity to
raise the attorney-client privilege prior to her testimony. 10/22/12 Trans. at 11 (“the Commonwealth
would recommend at this point that he testimony remain secret and that we
address this privilege matter at a later date”).
48.
At no time did Dr. Spanier waive his
attorney-client privilege with respect to Ms. Baldwin. Spanier Aff. ¶ 12.
49.
Ms. Baldwin testified before the grand jury on
October 26, 2012. Mr. Fina advised Ms.
Baldwin that “[w]e’re going to specifically not talk about your conversations
with Mr. Schultz or Mr. Curley in preparation for their testimony before the
grand jury or after they appeared in the grand jury to the extent it was about
their testimony.” 10/26/12 Trans. at
21. Mr. Fina did not make any similar
remarks about avoiding disclosure of Ms. Baldwin’s communications with Dr.
Spanier in connection with his grand jury appearance. Id.
50.
Mr. Fina directly asked Ms. Baldwin to disclose
those communications. See, e.g., 10/26/12 Trans. at 60 (“Q: [I]n fact, had you had
conversations with him as part of his interview with the authorities and his
grand jury testimony that there was a 1998 incident?”).
51.
The overwhelming majority of the questions and
answers during Ms. Baldwin’s grand jury testimony focused on Ms. Baldwin’s
communications with and impressions of Dr. Spanier. 10/26/12 Trans. at 1-74.
52.
No one raised the limitation that had been
presented to and accepted by Judge Feudale that the OAG would avoid eliciting
testimony about Ms. Baldwin’s communications with Messrs. Schultz and Curley
and “perhaps” Dr. Spanier. 10/22/12
Trans. at 10-14; 10/26/12 Trans. at 1-74.
53.
At no time did Ms. Baldwin invoke the
attorney-client privilege on Dr. Spanier’s behalf. 10/26/12 Trans. at 1-74.
54.
On November 1, 2012, a criminal complaint was
filed against Dr. Spanier charging him with the following counts: (1) Perjury,
a violation of 18 Pa. C.S. § 4902
and a felony of the third degree; (2) Endangering Welfare of Children, in
violation of 18 Pa. C.S.
§ 4304, a felony of the third degree (two counts); (3) Obstructing
Administration of Law or Other Governmental Function, a violation of 18 Pa. C.S. § 5101 and a misdemeanor of the
second degree; (4) Criminal Conspiracy (to Commit Obstructing Administration of
Law or Other Governmental Function), a violation of 18 Pa. C.S. § 903 and a misdemeanor of the second degree; (5)
Failure to Report, a violation of 23 Pa.
C.S. § 6319, a summary offense; (6) Criminal Conspiracy (to Commit
Perjury), a violation of 18 Pa. C.S.
§ 903 and a felony of the third degree; and (7) Criminal Conspiracy (to Commit
Endangering Welfare of Children), a violation of 18 Pa. C.S. § 903 and a felony of the third degree. A Presentment issued by the Thirty-Third
Statewide Investigating Grand Jury was attached to the criminal complaint.
55.
The Presentment indicates that the charges
brought against Dr. Spanier are based, in large part, on Ms. Baldwin’s
testimony before the grand jury regarding attorney-client privileged
communications and attorney work-product.
Ms. Baldwin’s descriptions of these communications and work product are
presented as evidence of an alleged conspiracy to make false statements to the
grand jury and prevent compliance with the grand jury investigation. Presentment at 21-32.
Legal Discussion
I. Deprivation of Counsel
A grand jury witness is
placed in a “delicate” position. Commonwealth v. McCloskey, 443 Pa. 117,
143-44, 277 A.2d 764, 777 (1971). “[I]f a witness answers incriminating
questions he may make certain . . . that he will be indicted. . . . If he refuses to testify at all, or to answer
some questions on the ground that answers might incriminate him, the grand jury
may draw conclusions. [And] [i]f he
refuses to answer questions that are not incriminating, he may be guilty of
contempt.” Id. The purpose of the right
to counsel before the grand jury is to ensure that the witness’s constitutional
rights—most prominently his privilege against self-incrimination—are protected. See Commonwealth v. Karash, 513 Pa. 6, 9-10,
518 A.2d 537, 539 (1986) (explaining that the right to counsel under the Fifth
Amendment is designed to protect against self-incrimination); McCloskey, 443 Pa. at 146, 277 A.2d at
779 (because appellees were given insufficient warnings regarding the right to
counsel during their grand jury testimony, “their indictments must be quashed
and their testimony suppressed”). The
Pennsylvania legislature viewed a grand jury witness’s right to counsel as so
fundamental that it afforded the same right of indigent persons to appointed
counsel in the grand jury room that criminal defendants are afforded under the
Constitution.[2] See
42 Pa. C.S. § 4549(c)(2); Powell v. Alabama, 287 U.S. 45, 73
(1932).
Here, Judge Feudale was
aware from proceedings held outside Dr. Spanier’s presence that Dr. Spanier had
become a target or at least a subject of the grand jury investigation, as the
OAG was pursuing the theory that Dr. Spanier and Messrs. Schultz and Curley
were “endeavoring to cover up their knowledge of Mr. Sandusky’s misconduct.” 4/13/11 Proceedings Trans. at 7-13. Judge Feudale also was aware from these
proceedings that Ms. Baldwin purported to not represent Dr. Spanier, and
therefore he would be unrepresented during his grand jury testimony. 4/13/11 Proceedings Trans. at 28. Judge Feudale hid that fact from Dr. Spanier
by permitting Ms. Baldwin to be present during Dr. Spanier’s grand jury
testimony as if she were his lawyer, 4/13/11 Testimony Trans. at 1-43, and by
affirmatively misrepresenting to Dr. Spanier that Ms. Baldwin was his attorney
and that she would assist him in exercising his rights during his testimony,
4/13/11 Proceedings Trans. at 31.
OAG representatives also
were aware that Dr. Spanier was a target or at least a subject of the
investigation and that Ms. Baldwin purported to not represent him for purposes
of his grand jury appearance. 4/13/11
Proceedings Trans. at 7-13, 28. Rather
than raising the fact that Ms. Baldwin would not be providing representation to
Dr. Spanier, and therefore that she should not be permitted in the grand jury
session, OAG representatives remained silent.
4/13/11 Proceedings Trans. at 28-34; 4/13/11 Testimony Trans. at
1-43. Mr. Fina specifically sought Judge
Feudale’s permission to have Agent Sassano and Trooper Rossman present during
the grand jury session pursuant to Pennsylvania Rule of Criminal Procedure
231(B), which allows the supervising judge to admit persons other than those
enumerated in Rule 231(A)—the Commonwealth’s attorney, the grand jurors, the
witness, the witness’s attorney, and a stenographer—into the grand jury session
upon request of the Commonwealth or the grand jury where their presence is
“necessary to the presentation of evidence.”
4/13/11 Proceedings Trans. at 33-34.
Yet, Mr. Fina did not make a motion under Rule 231(B) for Ms. Baldwin to
be present. 4/13/11 Proceedings Trans.
at 33-34.
Then, when Dr. Spanier identified Ms. Baldwin as his attorney during
his testimony, no OAG representative spoke up to correct him. 4/13/11 Testimony Trans. at 3. Nor did any OAG representative attempt to
clarify Ms. Baldwin’s role when she interrupted the proceedings to consult with
Dr. Spanier and raise clarifications on his behalf. Id.
at 8.
Ms. Baldwin also knew, based
on her presence at the grand jury testimony of Messrs. Schultz and Curley that
the grand jury was focusing on Dr. Spanier’s conduct and not only on
Sandusky. 1/12/11 Schultz Trans. at
17-18; 1/12/11 Curley Trans. at 8, 22-23.
Still, Ms. Baldwin led Dr. Spanier to believe she would represent him
and look out for his interests during his grand jury testimony, telling only
Judge Feudale and OAG representatives, outside Dr. Spanier’s presence, that she
actually only represented Penn State.
Spanier Aff. ¶ 7; 4/13/11 Proceedings Trans. at 28.
In sum, Dr. Spanier was affirmatively
misled to believe that he had counsel who would protect his rights and to
proceed with his testimony on that understanding, when in fact he did not have
counsel representing him. Judge Feudale,
OAG representatives, and Ms. Baldwin all knew that the grand jury was focusing
at least in part on Dr. Spanier’s conduct and that Ms. Baldwin claimed to not
represent Dr. Spanier for purposes of his grand jury testimony. Yet, Judge Feudale’s warning to Dr. Spanier
about the right to counsel included a false instruction that Dr. Spanier did
have counsel who would act on his behalf during his testimony. 4/13/11 Proceedings Trans. at 31. And while there was ample opportunity for OAG
representatives and Ms. Baldwin to advise Dr. Spanier that he did not actually
have counsel, they all stood mute. The
deprivation of counsel that occurred here is far more offensive and prejudicial
than that found in prior Pennsylvania cases in which courts have quashed
charges and suppressed grand jury testimony because, for example, a witness was
given an insufficient warning regarding the right to counsel during the
witness’s grand jury testimony. See McCloskey, 443 Pa. at 146, 277 A.2d
at 779; Commonwealth v. Cohen, 221
Pa. Super. 244, 253, 289 A.2d 96, 100 (1972).
The Pennsylvania Supreme Court has held that “in certain circumstances,
a constitutional violation in securing the indictment will necessitate that the
indictment be quashed.” McCloskey, 443 Pa. at 147, 277 A.2d at 779.
Specifically addressing the proper remedy for violations of the right
against self-incrimination (as protected by the right to counsel) before a
grand jury, the court concluded that where defendants “were compelled to
testify without sufficient warning or protection concerning their right against
self-incrimination[,] [t]he resulting presentment and indictments [that] were
based in part on this constitutionally impermissible testimony . . . must be
quashed.” Id.; accord Cohen, 221
Pa. Super. at 253, 289 A.2d at 100 (quashing indictments where grand jury
witness was given inadequate warning regarding the right to counsel and right
against self-incrimination and explaining that the witness’s “testimony was
received in violation of his constitutional rights and could not serve . . . as
the basis, in whole or in part, of any of the indictments entered against
him”).
Thus, the deprivation of Dr.
Spanier’s right to counsel in connection with his grand jury appearance
mandates quashing the criminal charges against Dr. Spanier.[3]
II. Violation of Grand Jury Secrecy
Only the grand jurors, the
Commonwealth’s attorney, the witness, the witness’s attorney, alternate grand
jurors, and a stenographer may be present while the grand jury is in session,
and all persons present during the session are sworn to secrecy. Pa. R. Crim. P. 231(A), (C); 42 Pa. C.S. §
4549(b). Additionally, upon request,
the supervising judge may permit the presence of “an interpreter, security
officers, [or] such other persons as the judge may determine are necessary to
the presentation of the evidence.” Pa. R. Crim. P.
231(B); see also Pa. R. Crim. P. 231(B), cmt. (explaining that “such
other persons” is meant to include a lead investigator to assist in witness
questioning and experts to assist the grand jury in interpreting complex
technical evidence, and only if such witnesses are judicially approved).
Here, because Ms. Baldwin
expressly stated to Judge Feudale and OAG representatives that she did not
represent Dr. Spanier, there was no basis under Rule 231(A) for her presence in
the grand jury session during his testimony.
Additionally, no one requested permission for Ms. Baldwin to be present
pursuant to Rule 231(B), nor is there any indication that her presence was
necessary to the presentation of evidence to the grand jury, as required by
that Rule. Rather, Mr. Fina’s oral motion
pursuant to Rule 231(B) only included Agent Sassano and Trooper Rossman. 4/13/11 Proceedings Trans. at 33-34. Despite Ms. Baldwin’s later attempt to
justify her improper presence by suggesting that it was warranted to protect
Penn State’s interests, there is no basis in the law for an attorney not
representing a grand jury witness to sit in on that witness’s testimony to
protect an institution’s alleged interests.
See Pa. R. Crim. P. 231(A)-(C); 42 Pa. C.S. §
4549(b).
In Commonwealth v. Levinson, 480 Pa. 273, 290, 389 A.2d 1062, 1070
(1978), the court quashed the charges against the defendant because six grand
jurors were substituted during the middle of a grand jury term and began to
participate in the proceedings, but that substitution was not permitted under
Pennsylvania law. Citing McCloskey, supra, the court
concluded that “an indictment based in part on the presentment of an
investigating grand jury which did not function in accordance with law to the
prejudice of appellant must be quashed.”
Levinson, 480 Pa. at 290, 389
A.2d at 1070.
The facts here pose an even
greater prejudice than the situation in Levinson,
as the Commonwealth and Supervising Judge knowingly admitted an unauthorized
person to the grand jury proceeding, while inducing Dr. Spanier to proceed with
his testimony on the understanding that he had legal representation, when in
fact, as they knew, he did not.
Moreover, Ms. Baldwin’s improper presence gave her access to Dr.
Spanier’s testimony and allowed her to tailor her own later grand jury
testimony to avoid potential liability for her own conduct in responding to OAG
subpoenas and the grand jury investigation.
See 12/19/11 Letter, F. Fina
to C. Baldwin at 2.
The egregious nature of Ms.
Baldwin’s conduct, the Supervising Judge and Commonwealth’s failure to prevent
such conduct, and the resulting prejudice to Dr. Spanier mandate quashing the
charges against Dr. Spanier. See Levinson, 480 Pa. at 289-90, 389
A.2d at 1070 (“[q]uashing the indictment[,] based as it was[,] at least in
part, on an invalid presentment, serves to assure regularity in the formulation
and proceeding of the investigatory grand jury [and] serves as a judicial check
upon the abuse of power of the investigating grand jury”); Commonwealth v. Shirey, 333 Pa. Super.
85, 106, 481 A.2d 1314, 1325 (1984) (the appropriate remedy for deprivation
of the right to counsel “should be tailored to the injury suffered”).
III. Conflict of Interest
In Pennsylvania, witnesses
subpoenaed to testify before the grand jury “shall be entitled to the
assistance of counsel, including assistance during such time as the witness is
questioned in the presence of the investigating grand jury.” 42 Pa. C.S. § 4549(c)(1). The right to counsel, whether afforded by
statute or by the Constitution, necessarily includes the right to effective
assistance of counsel. Commonwealth v. Liebel, 573 Pa. 375,
380-82, 825 A.2d 630, 634 (2003).
Representation by conflicted counsel interferes with a grand jury
witness’s right to effective assistance of counsel. See Pirillo v. Takiff, 462 Pa. 511, 524, 341
A.2d 896, 902 (1975) (explaining that the right to counsel “requires the services
of a lawyer who is not obliged to serve conflicting interests”); In re Fifth Pa. Statewide Investigating
Grand Jury, 50 Pa. D. & C.3d 617, 622 (C.P. Dauphin 1987)
(“[a]dequate representation of a client requires full representation, not such
representation as is convenient as it relates to another client with whom there
is a conflict of interest”). An actual
conflict of interest exists where: (1) counsel actively represented conflicting
interests, and (2) those conflicting interests adversely affected her
performance. Commonwealth v. Collins, 598 Pa. 397,
420, 957 A.2d 237, 251 (2008); see
also Commonwealth v. Breaker, 456 Pa. 341,
346-47, 318 A.2d 354, 355-57 (1974) (finding conflict of interest where
counsel induced a guilty plea from one client, against whom the Commonwealth’s
case was not very strong, as part of his strategy for the other client).
The Investigating Grand Jury
Act prevents an attorney from “multiple representation of clients in a grand
jury proceeding if the exercise of the independent professional judgment of an
attorney on behalf of one of the clients will or is likely to be adversely
affected by h[er] representation of another client.” 42 Pa. C.S. § 4549(c)(4). It is common practice for the prosecution to
alert the Supervising Judge of situations of representation conflicts. See In re Philadelphia County Investigating
Grand Jury XII, Petition of Vladimer, 529 Pa. 471, 472-73, 605 A.2d 318,
318 (1992); Pirillo, 462 Pa. at 517, 341 A.2d at 899;
In re Fifth Pa. Statewide Investigating
Grand Jury, 50 Pa. D. & C.3d at 619.
Here, the Commonwealth was
aware, prior to the grand jury testimony of Messrs. Schultz and Curley, that
Ms. Baldwin’s joint representation of Penn State and multiple grand jury
witnesses might create a conflict of interest.
See 11/14/12 Commw. Answer to
Defendants’ Omnibus Pretrial Motions at 7 (“[a]dmitted that representatives of the
Office of Attorney General knew Attorney Baldwin’s title [as General Counsel of
Penn State] and that she appeared and stated that she was representing the
Defendants for purposes of the Grand Jury”).
In fact, Deputy Attorney General Frank Fina apparently discussed the
conflicts issue with Ms. Baldwin before the testimony of Messrs. Schultz and
Curley. See id. at 23 (acknowledging that the Commonwealth knew that Ms.
Baldwin was aware of the possibility of a conflict). The possibility of a conflict was also
apparent during the in camera proceedings
before Dr. Spanier’s testimony, when Judge Feudale referred to Ms. Baldwin as
“counsel for Mr. Spanier,” while Mr. Fina referred to Ms. Baldwin as “Penn
State’s Counsel[ ].” 4/13/11
Proceedings Trans. at 17, 20. Judge Feudale
then explicitly sought clarification of Ms. Baldwin’s role when she was brought
back into chambers. Ms. Baldwin then
told Judge Feudale and OAG representatives—outside Dr. Spanier’s presence—that
she represented the University solely. Id. at 28. Thus, Ms. Baldwin’s own statements
demonstrated that she had an actual and irreconcilable conflict of interest
because, unbeknownst to Dr. Spanier, she had completely abandoned Dr. Spanier’s
interests in favor of her organizational client. 4/13/11 Proceedings Trans. at 28. As such, Dr. Spanier was denied his right to
effective assistance of counsel. Pirillo, 462 Pa. at 524, 341 A.2d at
902; In re Fifth Pa. Statewide Investigating Grand Jury, 50 Pa. D. &
C.3d at 622.
Ms. Baldwin was also
conflicted by her representation of Messrs. Schultz and Curley before the grand
jury, each of whom was a potential target of criminal investigation when the
grand jury shifted its focus to the conduct of Penn State. This joint representation undermined Ms.
Baldwin’s ability to represent Dr. Spanier adequately. For example, because she represented Messrs.
Schultz and Curley during their grand jury testimonies, she possessed
confidential information—the substance of their testimonies—that she could not
use to assist Dr. Spanier. See Pirillo, 462 Pa. at 525 n.5, 341 A.2d at
903 n.5 (“If one of the witnesses reveals his testimony before the grand
jury to his attorney, as he has every right to do, certainly the attorney will
feel obliged, perhaps even subconsciously, to reveal to his other clients the
testimony of the first witness. With the
attorney in such a position, either the attorney-client relationship or the
grand jury secrecy must suffer.”); In re Investigating Grand Jury No.
88-00-3505, 527 Pa. 432, 447, 593 A.2d 402, 409 (1991) (same).
Further, to the extent that
Dr. Spanier and Messrs. Schultz and Curley have been charged with conspiring to
withhold documents that were responsive to the grand jury subpoena issued to
Penn State in December 2010 and other allegedly obstructive acts, Ms. Baldwin,
as the chief legal officer of Penn State and the person responsible for
addressing all subpoenas, was a proper subject of any investigation for these alleged
crimes. Thus, Ms. Baldwin’s own conduct,
or lack thereof, likely would have been a focus of the grand jury’s attention
at the time that she represented Dr. Spanier before the grand jury. Ms. Baldwin’s own potential criminal
liability also created a conflict of interest that impeded her ability to
exercise independent professional judgment on behalf of Dr. Spanier. See Commonwealth v. Duffy, 483 Pa. 170,
175-76, 394 A.2d 965, 968 (1978) (finding a conflict of interest between
the defendant and his counsel where there was an allegation that counsel might
be culpable for playing a part in disposing of stolen property); United States v. Provenzano, 620 F.2d
985, 1005 (3d Cir. 1980) (citing Duffy with approval in affirming a district court decision to
disqualify a defendant’s attorney based in part on an allegation that the
attorney had himself incorporated one of the allegedly sham companies charged in
a RICO indictment); Pa. R. Prof. C. 1.7, cmt. 10 (“The lawyer’s own
interests should not be permitted to have an adverse effect on representation
of a client. For example, if the probity
of a lawyer’s own conduct in a transaction is in serious question, it may be
difficult or impossible for the lawyer to give a client detached advice.”). Under the Supreme Court’s decision in Duffy, when
an attorney is herself a possible subject of criminal allegations in connection
with the crimes charged against her client, she has a personal interest in
avoiding being criminally charged or convicted that clouds her ability to give
unbiased pretrial counseling and assistance in the criminal process. 483 Pa. at 175, 394 A.2d at
968. Thus, Ms. Baldwin’s personal
conflict interfered with Dr. Spanier’s right to effective assistance of counsel
before the grand jury.
Prejudice is presumed where
counsel had an actual conflict of interest or where there is an actual or
constructive denial of counsel. Commonwealth v. Reaves, 592 Pa. 134,
148-49, 923 A.2d 1119, 1128 (2007).
Even if prejudice were not presumed, Ms. Baldwin’s multiple
representation conflicts resulted in severe prejudice to Dr. Spanier. Ms. Baldwin failed to adequately prepare Dr.
Spanier for his grand jury appearance or to aid him during his testimony. Moreover, after purporting to represent
multiple clients, learning information from each of them, and listening to
their grand jury testimony, Ms. Baldwin turned around and testified against her
putative clients before the same grand jury.
It is hard to envision a situation in which a defendant could be more
severely prejudiced by ineffective representation by conflicted counsel than
Dr. Spanier was in this case. This
fundamental defect in the grand jury proceedings warrants quashing the charges
against Dr. Spanier. See McCloskey, 443 Pa. at 146-47, 277
A.2d at 779; Cohen, 221 Pa. Super. at
253, 289 A.2d at 100; Levinson, 480
Pa. at 290, 389 A.2d at 1070.
IV. Breach of Attorney-Client Privilege
Ms. Baldwin and Dr. Spanier
had a putative attorney-client relationship because Ms. Baldwin led Dr. Spanier
to believe she was representing him in connection with his grand jury
proceedings. Spanier Aff. ¶¶ 7, 8; see also Kirschner v. K&L Gates LLP, 46 A.3d
737, 748-49 (Pa. Super. 2012) (in the absence of an express contract, an
implied attorney-client relationship will be found if the putative client
sought assistance, the attorney agreed to render that assistance and was
competent to do so, and it was reasonable for the putative client to believe
that the attorney represented him), appeal
denied, 65 A.3d 414 (Pa. 2013). It
was more than reasonable for Dr. Spanier to believe that Ms. Baldwin was
representing him, as Ms. Baldwin never told Dr. Spanier that she was only representing
Penn State and never corrected Dr. Spanier’s understanding that she was his
attorney when he stated as much to the grand jury. Spanier Aff. ¶¶ 7, 8; 4/13/11 Testimony
Trans. at 3.
In the absence of a waiver
by Dr. Spanier of the privilege stemming from his putative attorney-client
relationship with Ms. Baldwin, Ms. Baldwin was not permitted to testify as part
of the criminal investigation regarding statements that Dr. Spanier made to her
in confidence or legal advice she provided to Dr. Spanier. 42 Pa. C.S. § 5916; Gillard v. AIG Ins. Co., 609 Pa. 65,
88-89, 15 A.3d 44, 59 (2011) (in Pennsylvania, the attorney-client
privilege covers communications from client to attorney and communications from
attorney to client). Yet Ms. Baldwin,
with prompting by OAG representatives, testified extensively about her
confidential communications with Dr. Spanier.
See 10/26/12 Trans. at 22
(“Q: Now, tell us, if you would, about your discussions with Spanier
before that interview.”); id. at 27
(“Q: [C]an you tell us, did he have the same approach to that testimony as he
did to the interview?”); id. at 32
(“A: There is no doubt that even before Graham wrote this e-mail that he
knew that his testimony was not secret. Not only did I tell him, the
Judge told him.”); id. at 52 (“Q:
[The Judge’s instruction that Dr. Spanier could disclose his grand jury testimony]
was just yet another reiteration of what you had been telling him?”); id. at 54 (“A: He was interviewed
. . . and there is no doubt that—that he had preparation at that time
. . . .”); id. at 60
(“Q: [I]n fact, had you had conversations with him as part of his interview
with the authorities and his grand jury testimony that there was a 1998
incident?”).
Ms. Baldwin did not invoke
the privilege on Dr. Spanier’s behalf or seek his informed consent to disclose
their communications, as she was required to do. See 42
Pa. C.S. § 5916 (“In a criminal proceeding
counsel shall not be competent or permitted to testify to confidential
communications made to him by his client . . . unless . . .
this privilege is waived upon the trial by the client”); In re Investigating Grand Jury, 887 A.2d 257, 260 (Pa. Super. 2005)
(attorney properly invoked attorney-client privilege and should not have been
held in contempt for refusing to answer questions during his grand jury
testimony about his former client’s statements), appeal denied, 588 Pa. 750 (2006); see also Pa. R. Prof. C. 1.6(a) (“A lawyer shall
not reveal information relating to representation of a client unless the client
gives informed consent . . . .”); Pa. R. Prof. C. 1.6, cmt. [19] (“A lawyer may be ordered to
reveal information relating to the representation of a client by a court or by
another tribunal or government entity claiming authority pursuant to other law
to compel the disclosure. Absent
informed consent of the client to do otherwise, the lawyer should assert on
behalf of the client all nonfrivolous claims that the order is not
authorized by law or that the information sought is protected against
disclosure by the attorney-client privilege or other applicable law. In the event of an adverse ruling, the
lawyer must consult with the client about the possibility of appeal to
the extent required by Rule 1.4 [relating to keeping the client informed].”)
(emphasis added); Pa. R. Prof. C. 3.10,
cmt. [1] (noting that a court should normally withhold permission from a
prosecutor to subpoena an attorney to testify before a grand jury unless,
“after a hearing,” the court determines that, among other things, the “the
information sought is not protected from disclosure by Rule 1.6, the
attorney-client privilege or the work product doctrine”).
Further, Ms. Baldwin was
aware that the OAG had promised to avoid eliciting testimony about her
communications with Messrs. Schultz and Curley and “perhaps” Dr. Spanier in
light of privilege claims because her own lawyers were present at the
proceedings where Judge Feudale accepted that promise as a limitation on her
testimony. 10/22/12 Trans. at
10-14. Neither Ms. Baldwin nor her
lawyers, who were also present during her grand jury testimony, raised this
limitation during Ms. Baldwin’s testimony.
Moreover, OAG
representatives prompted Ms. Baldwin to breach the attorney-client privilege
without obtaining prior judicial approval or offering Dr. Spanier an
opportunity to challenge Ms. Baldwin’s testimony. “When a prosecutor seeks arguably privileged
testimony, the prosecutor must either (1) give notice to the person who might
claim the privilege and the person’s counsel, so that the person or the
person’s attorney can seek judicial review of any claim or privilege or waive
the privilege, or (2) give notice to the person’s counsel and, if the person’s
counsel does not raise the privilege and seek judicial review, the prosecutor
must seek the court’s ruling on the privilege issue.” State
v. Wong, 40 P.3d 914, 923 (Haw. 2002).
The OAG’s conduct was
directly contrary to Rule 3.10 of the Pennsylvania Rules of Professional
Conduct, which provides that “[a] public prosecutor
. . . shall not, without prior judicial approval, subpoena an
attorney to appear before a grand jury . . . investigating criminal
activity in circumstances where the prosecutor . . . seeks to compel
the attorney/witness to provide evidence concerning a person who is or has been
represented by the attorney/witness.” The Comment to Rule 3.10 explains
that judicial approval should normally be withheld unless there has been a
hearing at which the court determines that the information sought is not
protected from disclosure by Rule 1.6, the attorney-client privilege, or the work
product doctrine. Pa. R. Prof. C. 3.10, cmt. [1]. As one Pennsylvania federal court noted, Rule
3.10 “requires the court to withhold altogether approval of a subpoena directed
to an attorney if the information sought relates to representation of the attorney’s
client, unless the client consents after consultation or unless one of four
exceptions [in Rule 1.6] is applicable.” Baylson v. Disciplinary Bd. of Supreme Ct.,
764 F. Supp. 328, 345 (E.D. Pa. 1991) (internal quotation and brackets
omitted), affirmed, 975 F.2d 102 (3d
Cir. 1992).[4] “[A] prosecutor should proceed with the
understanding that if the person who might claim the privilege has not been
given notice and an opportunity to be heard on the issue of privilege, a
court’s allowance of testimony may be overturned after the holder of the privilege
can be heard by the court.” Wong, 40 P.3d at 923.
Here, the OAG elicited
testimony that it knew Dr. Spanier would consider privileged and that was
likely outside of Penn State’s privilege wavier. 10/22/12 Trans. at 6-7, 11-12; 10/19/12 Ltr.,
M. Mustokoff to F. Fina. This occurred
after the OAG assured Judge Feudale that there was no need for a prior judicial
determination as to the privilege because Ms. Baldwin’s testimony would not
include her communications with Dr. Spanier.
10/22/12 Trans. at 5-6, 10-14.
The OAG’s actions and Ms.
Baldwin’s failure to invoke the attorney-client privilege resulted in a blatant
violation of Dr. Spanier’s rights to assert the privilege and to obtain a
judicial determination as to its applicability before his putative attorney
testified about confidential matters. See Commonwealth
v. Maguigan, 511 Pa. 112, 125, 511 A.2d 1327, 1334 (1986) (“To preserve the sanctity of
the confidence, this Court has historically held that the burden of proof is upon
the party asserting that disclosure of the information would not violate the
attorney-client privilege”). Courts may
dismiss charges entirely “in flagrant cases in which the grand jury has
been overreached or deceived in some significant way.” Wong, 40 P.3d at 928
(dismissing indictment because, among other things, the prosecutor elicited
privileged testimony in the grand jury without first notifying the privilege
holder or seeking judicial review of the privilege issue). See
also McCloskey, 443 Pa. at
146-47, 277 A.2d at 779 (quashing indictments in their entirety and suppressing
testimony where the presentment and resulting indictments were based on
constitutionally impermissible grand jury testimony obtained in violation of
the right against self-incrimination). The egregious intrusion into
Dr. Spanier’s privileged communications warrants quashing the criminal
complaint.
The Commonwealth’s post hoc reliance on the crime-fraud
exception to the attorney-client privilege does not cure the violation of Dr.
Spanier’s rights here. At the
time that Ms. Baldwin testified before the grand jury, OAG representatives were
well aware that Dr. Spanier would likely raise the attorney-client privilege
with respect to Ms. Baldwin. 10/22/12
Trans. at 11-12. As such, if the
Commonwealth intended to rely on the crime-fraud exception, the Commonwealth
should have raised it with Judge Feudale in the proceedings before Ms.
Baldwin’s testimony. OAG representatives
made no mention of the crime-fraud exception during those proceedings. To permit the Commonwealth’s after-the-fact
argument would be to allow prosecutors in every instance to breach the
privilege, learn the protected communication, and, when challenged, justify the
breach with post hoc rationalization.
Furthermore, a party
asserting the crime-fraud exception to the attorney-client privilege must first make out a prima facie case in support of its assertion without reliance on the privileged material. See United States v. Zolin, 491 U.S. 554,
574-75 (1989); In re Grand Jury, 705 F.3d 133, 151-52
(3d Cir. 2012) (applying this requirement in the context of a grand jury
investigation). The Commonwealth has
never made such a showing, before or after it prompted Ms. Baldwin to breach
attorney-client privilege in the grand jury.
It has identified no independent evidence indicating that Dr. Spanier
sought Ms. Baldwin’s advice in furtherance of a crime or fraud, and therefore
has failed to meet its burden.
Even if the Commonwealth
were permitted to rely on Ms. Baldwin’s testimony to demonstrate that the
crime-fraud exception applies, it still could not meet its burden. The exception does not apply simply because
the defendant is alleged to have committed a crime at the time he was
represented by counsel, as the Commonwealth appears to believe. Rather, the exception applies only where the
party seeking to overcome the privilege proves that the client sought the
advice of counsel “in furtherance of
the commission of criminal or fraudulent activity.” Nationwide Mut. Ins.
Co. v. Fleming, 924 A.2d 1259, 1265 (Pa. Super. 2007) (emphasis added);
see In re Grand Jury, 705 F.3d at 151
(explaining that the crime-fraud exception has two elements: “(1) the client
was committing or intending to commit a crime or fraud, and (2) the
attorney-client communications were in furtherance of that alleged crime or
fraud”). The burden placed on the
Commonwealth is a heavy one, as courts must “resolve all doubts in favor of
non-disclosure.” Brennan v. Brennan, 281 Pa. Super. 362,
372, 422 A.2d 510, 515 (1980).
In prior filings, the
Commonwealth identified two examples that supposedly establish the
applicability of the crime-fraud exception in this case, but neither example
demonstrates that Dr. Spanier sought Ms. Baldwin’s advice in furtherance of a
crime. First, the Commonwealth claimed
that Ms. Baldwin’s testimony that Dr. Spanier seemed “well versed” in the
allegations against Sandusky contradicts Dr. Spanier’s own statements. Even if Ms. Baldwin’s
testimony were accurate, at most, it shows that Dr. Spanier offered different
accounts of his recollection at different times, not that he relied on Ms.
Baldwin’s advice in furtherance of a crime.
Second, the Commonwealth pointed to Ms. Baldwin’s testimony regarding
her attempts to comply with subpoenas issued by the grand jury. Yet, the Presentment alleges that Dr. Spanier
“personally and directly assured [Ms. Baldwin] that [he] knew of no information
or documents involving alleged misconduct or inappropriate contact by Jerry Sandusky.” Presentment at 21. At no point does the Presentment allege that
Dr. Spanier sought Ms. Baldwin’s assistance in concealing documents. Thus, neither of these two examples comes close
to meeting the Commonwealth’s burden.
Although it failed to make
the argument in any of its prior pleadings, the Commonwealth appeared to assert
in a January 2, 2014 letter to the Court that Dr. Spanier waived any protection
of the attorney-client privilege by speaking about his communications with Ms.
Baldwin to third parties. This argument
has no merit.
The attorney-client
privilege survives the client’s subsequent disclosure of confidential
attorney-client communications to third parties “because it is the relationship
that existed at the moment of the communication which society seeks to protect
by the privilege, not the substance of the privilege itself.” Commonwealth
v. Ferri, 410 Pa. Super. 67, 73, 599 A.2d 208, 211 (1991) (quoting Commonwealth v. Clark, 347 Pa. Super.
128, 133, 500 A.2d 440, 443 (1985), overruled
on other grounds by Commonwealth v. McBurrows, 779 A.2d 509,
515 (Pa. Super. 2001)). In Ferri, the Superior Court extended its
earlier decision in Clark, which
addressed the marital privilege, to the context of the attorney-client
privilege. Ferri, 410 Pa. Super. at 73-74, 599 A.2d at 211-12. The court in Clark noted that “the confidentiality that inhered in the initial
conversation [cannot] be wiped away when the speaker for whatever reason, talks
to the third parties about the same matters.”
Clark, 347 Pa. Super. at
132-33, 500 A.2d at 442. The court
further explained that “[d]espite what a speaker spouse chooses to utter at a
later time, his original confidence remains intact not merely for his benefit,
but for the good of marriage as an institution.
It is the relationship that existed at the moment of communication which
society seeks to protect by the privilege, not the substance of the message
itself.” Id. at 133, 500 A.2d at 443.
The court in Ferri adopted this same reasoning and
applied the holding in Clark to the
attorney-client relationship and attorney-client privilege: “The attorney-client privilege, likewise,
seeks to protect a relationship by fostering a confidence between client and
advocate that will lead to a trusting and open attorney-client dialogue. The result of a violation of the
attorney-client privilege is damage to the administration of justice. Analogous to the marital privilege, it is the
relationship between the attorney and client at the moment of the communication
that society seeks to protect. Thus, the
holding in Clark is equally
applicable to prevent waiver of the attorney-client privilege.” 410 Pa. Super. at 73-74, 599 A.2d at 211-12
(citation and internal quotation omitted).
Thus, regardless of the
purported subsequent disclosures that the Commonwealth has alluded to here, Ms.
Baldwin was not permitted to reveal information that Dr. Spanier disclosed to
her in confidence without Dr. Spanier’s prior consent. Ferri,
410 Pa. Super. at 73-74, 599 A.2d at 211-12; Clark, 347 Pa. Super. at 133-34, 500 A.2d at 443. For this reason, the Commonwealth’s apparent
argument that Dr. Spanier waived any objection to the testimony of Ms. Baldwin
is meritless.
V. Prosecutorial Misconduct
Courts may dismiss charges
based on prosecutorial misconduct before a grand jury either because (1) there
was actual prejudice, as the prosecutorial misconduct “substantially influenced
the grand jury’s decision to indict or there is a grave doubt that the decision
to indict was free from the substantial influence of such violations,” or (2)
“the structural protections of the grand jury have been so compromised as to
render the proceedings fundamentally unfair, allowing the presumption of
prejudice.” Bank of Nova Scotia v. United States, 487 U.S. 250, 257 (1988); Commonwealth v. Williams, 388 Pa. Super.
153, 160-61, 565 A.2d 160, 164 (1989).
Dr. Spanier was actually
prejudiced by the OAG’s conduct here because it influenced the grand jury’s
recommendation of charges against him.
By the time Dr. Spanier testified before the grand jury, the OAG was
already pursuing the theory that Dr. Spanier had made false statements in his
prior interview in order to allegedly cover up his knowledge of allegations
against Sandusky. 4/13/11 Proceedings
Trans. at 7-13. Thus, there was no
reason to have Dr. Spanier testify before the grand jury other than to set up
potential perjury or failure to report charges against him. Knowing that Dr. Spanier was not merely a
witness for the purposes of moving the Sandusky investigation along, OAG
representatives were nonetheless fully complicit in leading Dr. Spanier to
believe he had legal representation, even though Ms. Baldwin had told them
otherwise outside Dr. Spanier’s presence.
4/13/11 Proceedings Trans. at 7-13, 17, 20, 28, 30-31, 33-34; 4/13/11
Testimony Trans. at 3, 8. Through this
subterfuge, they obtained his uncounseled testimony.
These actions deprived Dr.
Spanier of counsel that would have, among other things, assisted him in
deciding whether to exercise his right against self-incrimination during his
grand jury testimony. See McCloskey, 443 Pa. at 143-44, 277
A.2d at 777 (explaining that a key purpose of the right to counsel before the
grand jury is to ensure that the witness’s constitutional rights, most
prominently his privilege against self-incrimination, are protected). Even a completely innocent citizen may assert
the privilege if he believes a prosecutor intends to use his testimony against
him.
Further compounding the
prejudice to Dr. Spanier, OAG representatives then elicited testimony from Ms.
Baldwin about her communications with Dr. Spanier without seeking a judicial
determination as to whether those communications were privileged. See 10/26/12
Trans. at 22, 27, 32, 54, 60. The OAG
did this after leading Judge Feudale to believe that Ms. Baldwin’s grand
testimony would not involve her communications with Messrs. Schultz and Curley
“and perhaps [Dr.] Spanier,” and instead would be focused on Ms. Baldwin’s role
in complying with grand jury subpoenas and court orders relating to the
Sandusky investigation. 10/22/12 Trans.
at 11-14. OAG representatives should
have clarified with Judge Feudale that they only intended to avoid questioning
Ms. Baldwin on areas involving potentially privileged communications with
Messrs. Schultz and Curley, and not those with Dr. Spanier. Instead, the OAG misrepresented its intent
with regard to Ms. Baldwin’s testimony and focused almost exclusively on areas
that plainly implicated Dr. Spanier’s confidential attorney-client
communications.
Further, the OAG’s conduct
here compromised the structural protections of the grand jury and rendered the
proceedings fundamentally unfair. Bank of Nova Scotia, 487 U.S. at
257.
On their face, the
transcripts at issue evidence a flagrant pattern of prosecutorial misconduct by
OAG representatives that eroded Dr. Spanier’s rights before the grand jury,
including:
1.
failing to advise Dr. Spanier that Ms. Baldwin
did not represent him when they learned that she represented only Penn State,
4/13/11 Proceedings Trans. at 28;
2.
failing to object to Judge Feudale’s instruction
to Dr. Spanier that he had counsel that would assist him in exercising his
rights, 4/13/11 Proceedings Trans. at 30-31;
3.
failing to object to Ms. Baldwin’s presence in
the grand jury proceedings while making a special request for other
unauthorized persons to be permitted to enter the session, 4/13/11 Proceedings
Trans. at 33-34;
4.
asking Dr. Spanier to confirm to the grand jury
that Ms. Baldwin was his attorney for purposes of his grand jury appearance,
when they knew he did not actually have counsel, 4/13/11 Testimony Trans. at 3;
5.
allowing Ms. Baldwin to interject in front of
the grand jury to confer with Dr. Spanier and make clarifications on his
behalf, 4/13/11 Testimony Trans. at 8;
6.
leading Judge Feudale to believe that Ms.
Baldwin would only testify before the grand jury about Penn State’s response to
subpoenas and court orders, 10/22/12 Trans. at 13-14;
7.
leading Judge Feudale to believe that Ms.
Baldwin would not testify before the grand jury about her potentially
privileged communications with Dr. Spanier, 10/22/12 Trans. at 11-12;
8.
failing to advise Dr. Spanier that the OAG
planned to elicit testimony from Ms. Baldwin about her communications with Dr.
Spanier that he would likely consider privileged, 10/22/12 Trans. at 11; and
9.
failing to seek a judicial determination as to
the applicability of the privilege in advance of eliciting testimony from Ms.
Baldwin about her communications with Dr. Spanier, 10/26/12 Trans. at 22, 27,
32, 54, 60.
In grand jury matters, “the
potential for abuse is so great, and the consequences of a mistaken indictment
so serious, the ethical responsibilities of the prosecutor, and the obligation
of the judiciary to protect against even the appearance of unfairness, are
correspondingly heightened.” United States v. Serubo, 604 F.2d 807,
817 (3d Cir. 1979). In this context,
“dismissal of an indictment may be virtually the only effective way to encourage
compliance with these ethical standards, and to protect defendants from abuse
of the grand jury process.” Id.; see
also Salvitti Appeal, 238
Pa. Super. 465, 470, 357 A.2d 622, 625 (1976) (recognizing that investigating
grand juries in Pennsylvania are subject to the supervision of a supervising
judge and there is “no reason why an investigating grand jury should be
supervised less strictly if it is a state grand jury rather than a federal
one”); Commonwealth v. Bane, 39 Pa. D. & C. 664, 672-74 (C.P. Wash.
1940) (“Every man, whatever the offenses of which he
may be suspected, is as much entitled to the just, impartial, and unbiased
judgment of a grand jury as he is to that of a petit jury on his final
trial. It is as essential that the one
body as the other should be permitted to act free from sway or control from any
source, and without fear or favor. The
temptation to disregard these safeguards of the rights of persons accused is
often great, though, happily, the instances are few where it has been yielded
to; but this is one of them of a character so flagrant and shocking that no
American court could tolerate it, and it is our duty to say so with emphasis.”).
The flagrant and shocking prosecutorial
misconduct that occurred here warrants a complete dismissal of the criminal
charges against Dr. Spanier.
Relief Requested
For all of the
foregoing reasons, Dr. Spanier respectfully requests that the Court dismiss the
Criminal Complaint in its entirety.
Respectfully
submitted,
________________________________
Timothy K. Lewis (PA ID No. 32199)
Elizabeth K. Ainslie (PA ID No. 35870)
Schnader Harrison Segal & Lewis LLP
1600 Market Street, Suite 3600
Philadelphia, PA 19103
215-751-2000
215-751-2205 (facsimile)
Attorneys for Defendant Graham B.
Spanier
Dated:
February 18, 2014
IN THE COURT OF
COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH
OF PENNSYLVANIA, :
: No. CP-22- CR-3615-2013
:
:
v. :
:
GRAHAM
B. SPANIER, :
:
Defendant. :
CERTIFICATE OF SERVICE
I hereby certify that a
true and correct copy of the foregoing Post Hearing Memorandum was delivered
this 18th day of February 2014, to the following:
By Email and First Class Mail
Bruce Beemer, Esq.
Deputy Attorney
General
Office of the
Attorney General
Strawberry Square
Harrisburg, PA 17120
bbeemer@attorneygeneral.gov
Attorney for the Commonwealth
Caroline M. Roberto,
Esq.
429 4th Avenue, Suite
500
Pittsburgh, PA 15219
Attorney for Defendant Timothy Mark Curley
Thomas J. Farrell,
Esq.
Farrell &
Reisinger, LLC
200 Koppers Building
436 7th Avenue
Pittsburgh, PA 15219
Attorney for Defendant Gary Charles Schultz
By Hand Delivery
Carolyn C. Thompson,
Esq.
District Court
Administrator
Dauphin County
Courthouse
Court Administrator’s
Office
101 Market Street,
Suite 300
Harrisburg, PA 17101
_____________________________________
Elizabeth
K. Ainslie
Attorney for Defendant Graham B. Spanier
[1] Separate transcripts were prepared of
proceedings on April 13, 2011 in the chambers of then-Grand Jury Supervising
Judge Barry F. Feudale (beginning at 8:57 a.m.) and of Dr. Spanier’s testimony
(beginning at 9:53 a.m.). These
transcripts are cited as “4/13/11 Proceedings Trans.” and “4/13/11 Testimony
Trans.,” respectively.
[2] The provision of the Investigating Grand Jury
Act that affords a grand jury witness the right to counsel was introduced by
former State Representative, now Judge of the United States Court of Appeals
for the Third Circuit, Anthony Scirica.
Then-Representative Scirica explained that the “inclusion of defense
counsel within the grand jur[y] . . . [is] the single most important element to
guard against potential abuse. . . . The only way that we can guarantee that
any individual who is called before the grand jury will understand what
constitutional rights are afforded him is to allow him to have a lawyer present.” 44 Pa. Legis. J. 3097, 3162 (Sept. 21, 1978)
(statement of Rep. Anthony Scirica).
[3] Dr. Spanier notes that his Motion to Quash
Criminal Complaint argued that only the Perjury, Obstruction, and Conspiracy to
Commit Perjury and Obstruction charges should be dismissed in light of the
deprivation of counsel, violation of grand jury secrecy, conflicted representation,
and violation of attorney-client privilege that took place here. Following the Commonwealth’s disclosure of
the grand jury transcripts discussed herein, Dr. Spanier has argued that the
entire presentment and resulting criminal charges must be dismissed in light of
these grand jury defects.
[4]
OAG prosecutors have criticized
the strictures of Rule 3.10 and pressed for its removal from the Rules of
Professional Conduct. See, e.g., Andrea F. McKenna, A Prosecutor’s Reconsideration Of Rule 3.10,
53 U. Pitt. L. Rev. 489
(1992). Yet, it remains part of the
Rules, even after the extensive 2004 amendments to the Rules, and Commonwealth
prosecutors remain bound by it. While a
Senior Deputy Attorney General claimed that “the practice of the Office of
Attorney General has been to make a record satisfying the requirements set
forth in the comment to Rule 3.10 during an ex parte hearing before the
supervising judge of the grand jury,” id.
at 513 n.95, the transcripts of the proceedings before Ms. Baldwin’s testimony make
clear that the OAG did not demonstrate that her testimony was “not protected
from disclosure by Rule 1.6, the attorney-client privilege or the work product
doctrine.” Pa. R. Prof. C. 3.10, cmt. [1]. See
10/22/12 Trans. at 5-6, 10-14.
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