Trial transcripts add evidence that Spanier was Corbett's ultimate target in Sandusky investigation

A sidebar discussing the possible use of e-mail evidence during the Sandusky trial revealed that the PA OAG wasn't going to try the cases of Curley and Schultz

By
Ray Blehar

In my February 1, 2014 blogpost, titled "Sandusky scandal marked by deception, suppression and manipulation," I posited the theory that a political vendetta by Tom Corbett against Graham Spanier was the critical turning point in the Sandusky case.  The timeline below, which shows that the case took off after the Corbett-Spanier budget battle, as well as other evidence, supported that theory.

























The timeline not only supports the theory that the budget battle was the most important catalyst of the Sandusky investigation, but negated the theory that electoral politics were what caused the investigation to lag.  

Other evidence supporting the budget battle theory includes that PSU officials were informed (on or about January 31, 2012) that "Fina expected Curley and Schultz to flip,' the failure to charge Spanier at the same time as Curley and Schultz, the chain of custody and tampering issues regarding the e-mail evidence, and Baldwin's forced "flip-flop" on Spanier.

Trial Transcripts Provide More Evidence

While reviewing the 6-18-2012 Sandusky trial transcripts (pps. 162175)-back in June of this past year, I took particular notice to a sidebar discussion regarding the possible use (by the defense) of the grand jury transcripts of Curley, Schultz, and Spanier as a method of impeaching the testimony of Mike McQueary.  

After some discussion, defense counsel Karl Rominger then limited his request to just pages 3 through 8 of Tim Curley' s testimony. As the discussion continued, prosecutor Joseph McGettigan brought up that their side could use the e-mails and Schultz's notes,as well as the perjury charges, as "tremendous contrary evidence."  

Not long after that, Judge Cleland began discussion and brought up the concept that the Commonwealth could have been using the indictments against Curley and Schultz to "hamstring the defense" in the Sandusky case (see page 169).  However, as it concerns Spanier, Judge Cleland's comment that use of the email and other evidence might compromise the OAG's case against Curley and Schultz is the more critical discussion.

McGettigan: "We're not
going to try that case."

As the discussion continued, Judge Cleland was "thinking out loud" that the use of the email and other evidence might compromise Curley and Schultz's right to fair trial down the road.  

Seconds later, prosecutor Joseph McGettingan made the surprising admission that the Commonwealth was "not going to try that case."  The latter statement supporting the existing evidence that the OAG's strategy was to get Curley and Schultz to flip on Spanier (after Spanier was charged).

"Flip" would save Commonwealth's weak case

The Commonwealth's case against Spanier is flimsily supported by the grand jury testimony of former PSU General Counsel Cynthia Baldwin and three emails, only one of which  contains anything of substance, and even it is of dubious provenance.

Baldwin
As I wrote back in December 2013, Baldwin's grand jury testimony has been refuted by practically everyone else who had some role in the case, including Spanier, PSU PR employee Lisa Powers, PSU IT employee John Corro,  OAG employees Braden Cook and Agent Sassano and even members of the PSU Board of Trustees.  

Baldwin's testimony was refuted by
everyone else in the Sandusky case

If Curley and Schultz were not facing charges, they too would have refuted Baldwin's testimony, however their pre-grand jury interviews managed to do just that.  Baldwin contended that she had met on several occasions with the PSU Three to discuss grand jury Subpoena 1179, which requested files relating to the 2002 (sic) incident involving Sandusky and any other known incidents.  Ironically, at their pre-grand jury police interviews (Exhibit B) neither Curley or Schultz knew the year of the incident, with Schultz believing it took place sometime after 2003 and Curley stating it was in 2000.  It's a stretch to believe Baldwin told them to search for records but didn't tell them the year in which the incident occurred.

Then there's Baldwin herself, who can only be described as duplicitous in her representation of the PSU Three.  When asked the question if she represented Tim and Gary, she evaded answering by simply stating that Tim was an employee and Gary was retired.  In Spanier's case, before he testified she told the grand jury judge (page 28)  that she "represents the University solely," then did not correct the record when Spanier identified her as his counsel (page 3).  

Baldwin also "flipped' her position on Spanier, first telling government investigators who were processing his security clearance that he was "a man of integrity" but later told a grand jury (page 70) the exact opposite, "that he was not a man of integrity. He lied to me."  Baldwin's alleged change of heart about Spanier came after the Freeh Report was released. That argument doesn't hold water either, because there was no evidence about Spanier in the Freeh Report that Baldwin shouldn't have already seen (save the one tampered e-mail).  Even so, that e-mail doesn't refute Spanier's claim of believing horseplay took place in 2001.

I doubt the Commonwealth has much confidence that Baldwin's testimony would be believed by a jury.


E-mail Chain of Custody
The prosecution, Spanier/PSU critics, and the media all seem to believe that a February 27-28, 2001 email of which Spanier was a conversant, provides "rock solid evidence" that Spanier, Curley, and Schultz decided not to report Sandusky to the authorities.  It was in that email that Spanier allegedly wrote "then we become vulnerable for not reporting it."  

One of the reasons they believe it is because they are oblivious to the chain of custody issue  regarding all of the e-mail evidence used in the case.

Freeh Report findings about Paterno and
 e-mails refuted by Fina, Moulton, and others

Snippets of the e-mail were first leaked in the press in mid-June 2012, just before the Sandusky trial.  Media coverage of the e-mail leaks then became more prominent at the end of June, with CNN leading the reporting.  The full e-mails were released as part of the Freeh Report as the most important evidence in the case.  According to former FBI-Director Louis Freeh, they proved not only a cover up, but that Joe Paterno was the only intervening factor that caused PSU officials not to report Sandusky to the proper authorities.  

In September 2013, Freeh's allegation that Paterno was part of the cover-up was refuted by lead prosecutor Frank Fina.   

But Fina was not the only person to refute Freeh's e-mail assertions.

All of the e-mail evidence used in the case were from the mail folders of Gary Schultz.   At the report press conference, Freeh announced that his team had made "independent discovery" of the e-mail evidence on March 20, 2012.  

"Our investigative team made independent discovery of critical 1998 and 2001 emails – the most important evidence in this investigation."

Freeh's statement was refuted by testimony at the July 2013 preliminary hearing of the PSU Three, Spanier's grand jury proceedings, and by Geoffrey Moulton's investigation.  The media, particularly the Wall Street Journal (whom I contacted personally) refused to print these revelations, thus the public has yet to learn that Freeh lied about the e-mail (and other evidence) during his press conference. 

At the preliminary hearing,  PSU IT department employee John Corro testified that he had provided three thumb drives containing emails in response to Subpoena 1179 to Cynthia Baldwin in April 2011 (page 89).  Furthermore OAG computer forensics expert Braden Cook stated that in March 2012, he realized the Schultz e-mails were missing from the inventory.  Cook then stated he received Schultz's network file share on a DVD from the OAG computer unit on March 23, 2012 (page 107).   

Then PSU-Counsel Cynthia Baldwin informed the court at Spanier's April 2011 colloquy (page 27) that the PSU IT Department (i.e., PSU's SOS unit) was searching for the e-mails related to Subpoena 1179 and she promised to turn them over by April 15, 2011.

To recap to this point, four different timeframes were mentioned regarding the turnover of the email evidence:  April 2011 (Corro); April 15, 2011 (Baldwin); March 20, 2012 (Freeh); and March 23, 2012 (Cook).  

It doesn't stop there.

Kelly:  Obstruction allegations re: email
have been refuted by the Moulton report.

The Conspiracy of Silence grand jury presentment (page 32) alleged that the emails and other evidence were not searched for and found until the first four months of 2012.  In addition, it alleged (page 22) that the PSU IT department (SOS) was not used to find the email evidence until after the arrests of Curley and Schultz.  Both allegations are patently false, given that Corro is an SOS employee and testified to searching for and obtaining the emails in April 2011.



After five different dates/time-frames, Geoffrey Moulton put the final nail in the coffin at #6.

#6:  The Final Nail
The report of the Sandusky investigation (page 158)  by Special Deputy Attorney General Geoffrey Moulton  revealed (as part of the investigation timeline )that a thumb-drive containing the Penn State e-mail evidence was turned over to Trooper Scott Rossman on July 7, 2011.  


"July 7, 2011.  Tpr. Rossman receives a thumb drive containing Penn State emails. "

Therefore, the Moulton Report disproved not only Freeh's statement of independent discovery by his team in March 2012, but also disproved the former-AG Linda Kelly's allegations in the Conspiracy of Silence presentment that the e-mails were not turned over by PSU until the first four months of 2012.  

The analysis and conclusions regarding the e-mail evidence (which could be tossed due to chain of custody) also lends credence to the theory that getting Curley and/or Schultz to implicate Spanier was the preferred, if not the only way, that the OAG could get a conviction.  

E-mail Tampering
Moulton's verification of the true date that the e-mails finally made their way to the lead investigator also lends credence to my theory of evidence tampering.   If the e-mail evidence, particularly from 27-28 February 2001, was turned over in April 2011, then Spanier could have been (wrongly) charged with failure to report child abuse at the same time as Curley and Schultz.

The likely reason Spanier wasn't charged is because the contents of the e-mail in April 2011 didn't match the contents of the e-mail that was included in the Freeh Report.

Given that Freeh's computers were not part of the University system, any information processed on them could have been subject to alteration and there would be no audit trail left behind at PSU.  When Freeh packed up and left State College, you can bet his computer hard drives were either wiped or trashed as not to leave an evidence trail.

Forensic analysis of the email in question by document and computer forensics experts all concluded the e-mail was suspicious and needed to be compared with an original version of the e-mail from the PSU server.   The interpersed html code, specifically the single " " within the response by Curley, as well as the fact that Schultz signature block, not Spanier's should be at the bottom are indications of suspected tampering. 

The appearance of html tags in the body of emails can occur when when converting a Eudora mailbox to Outlook.  In this case there were five Eudora emails from the February 2001 time-frame included as evidence exhibits in the Freeh Report.  Only two of the five have the interspersed html code and in both cases, contain the wrong signature block, which (not so) coincidentally belonged to Spanier.   Those emails were likely subject to tampering.

When the e-mails were tampered with, they were first downloaded from Eudora as plain text files and edited in Outlook in rich text (or html).  They were likely messy looking when downloaded, but to no avail, Freeh's team went about its business. When the changes were made, they were saved back to the Eudora mail box with the messy html still visible. 

My review of the Freeh Report appendices found that nearly of dozen e-mails and documents showed signs of tampering. This evidence has been turned over to law enforcement.

Fina's statement to PSU officials

Despite the lack of openness we've experienced from the Penn State administration recently, Universities are rather open environments and not of the mindset of the ways in which seemingly benign information can be very valuable to an adversary.  As a result, Universities, including PSU, are not very proficient at safeguarding information and data.  

As a result of these deficiencies, information related to the Sandusky case and subsequent NCAA investigation was not properly safeguarded and made its way outside the University.  Among that information was Fina's statement to PSU officials that he "expected Curley and Schultz to flip."  

In addition, other leaked information revealed that Schultz had been approached by the Commonwealth and asked to testify against Spanier.  Schultz refused to do so, allegedly telling the prosecution that he wasn't going to perjure himself to implicate Spanier, especially when he was already facing perjury charges.

Conclusion

In summary, Fina is on the record as expecting Curley and Schultz to "flip."  McGettigan is on the record stating that the Commonwealth "wasn't going to try that case" (i.e., Curley and Schultz).  It seems clear that by June 2012, the OAG was getting the charges ready against Spanier and believed that Curley and Schultz would testify against the former President to save their own backsides.   That didn't happen.

AG Kathleen Kane has been steadfast in her statements about prosecuting the case, however, the key driver there appears to be politics.  As we saw in the un-prosecutable Ali bribery case, Kane's opponents in the GOP and the media went after her relentlessly for not prosecuting four Democratic legislators who accepted gifts totaling  $16,500.  Meanwhile, the informant, Ali, had been given "the deal of the century" by former prosecutor Fina, who dismissed over 2,000 charges related to a fraud of $430,000. 

Schultz, Spanier, and Curley: Being scapegoated to
cover up the failures of PA's child protection system

I suspect that Judge Hoover and Kane are waiting for the Federal investigation of The Second Mile to conclude in order to have the political cover to ditch the case of the PSU Three.

When, and if that happens, how long will it take for  the media realize the whole case against PSU was a smokescreen to cover up the failures of PA's child protection system and of The Second Mile in the Sandusky case?  And that the Freeh investigation was a complete sham.