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

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

By
Ray Blehar

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

Baldwin Grand Jury Subpoena Compliance

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

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

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

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

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

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

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

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

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

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

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

Sandusky's Retirement and Emeritus Status

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

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

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

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

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

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

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

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

Feudale's and OAG Misconduct

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

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

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

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

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

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

Later, Feudale falsely (at w., page 11) stated he did not inquire about the representation of Baldwin during the Spanier colloquy.

However, the transcript of the colloquy clearly shows Feudale did make the follow up inquiry and that Baldwin informed him she represented the University, solely.

Given that Fina, Eshbach, and Feudale were all familiar with grand jury procedures, they knew Baldwin was not allowed in the grand jury room but allowed her to sit in on Spanier's testimony anyway.

It gets worse.  


When Spanier was sworn in, he was asked if he had legal counsel present to which he responded, "Cynthia Baldwin sitting behind me."

At that point, Feudale, Fina, and Eshbach knew that Spanier was unwittingly testifying without counsel -- a violation of his Constitutional rights.

Based on this evidence, there is little doubt that Judge Feudale, Justice Baldwin, and OAG prosecutors were collaborating in an effort to take down Spanier.

The remaining questions are who else was involved and who do they represent?

ADDENDUM:  Fina's remark about Penn State selectively searching and performing a privilege review before the release of the e-mail evidence to the OAG appears to be a practice that was likely recommended by former Merck general counsel and Special Investigations Task Force Co-chair, Kenneth Frazier.  Please see this article written by the Pepper Hamilton law firm regarding attorney-client privilege in the Vioxx case.  http://www.pepperlaw.com/publications_article.aspx?ArticleKey=1279