Friday, August 28

"Nifonged" Part 2: The Real Conspiracy of Silence

According to the Moulton Report, "the Penn State state emails" were turned over by July 7, 2011, proving a key obstruction of justice allegation was false and that Fina suppressed this evidence to charge Curley and Schultz with failure to report.   

Ray Blehar

In Part 1 of the series, the evidence indicated that Frank Fina's expectation that Curley and Schultz would "flip" was among the reasons behind his use of unreliable evidence.  Fina's reliance in pressing charges on flimsy evidence was much worse than that of Durham DA Mike Nifong, who was eventually disbarred over his misconduct in the Duke lacrosse case. In Part 2, the Moulton Report and a lot of other evidence reveal the misconduct on the part of Fina and then-Penn State Counsel Cynthia Baldwin during the Sandusky investigation -- in the lead up to the eventual Conspiracy of Silence case.

On November 1, 2012, the Conspiracy of Silence  (CoS) presentment levied allegations of obstruction justice against Graham Spanier, Gary Schultz, and Tim Curley.  While a long list of allegations were included in the presentment, many of which were not crimes, the key allegation of obstruction of justice was the lack of compliance with Subpoena 1179.

GJ Subpoena 1179 (Sandusky case), issued on December 29, 2010 requested:  

"Any and all records pertaining to Jerry Sandusky and incidents reported to have occurred on or about March 2002, and any other information concerning Jerry Sandusky and inappropriate contact with underage males both on and off University property. Response shall include any and all correspondence directed to or regarding Jerry Sandusky."

That allegation was blown away by the Moulton Report's timeline, specifically:

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

Trooper Scott Rossman and OAG Agent Anthony Sassano were the two investigators assigned to the case in July 2011.  Obviously, Rossman's receipt of the Penn State emails proves the charge of a "total lack of compliance" was false. 

Additionally, the notebook of former PSU President Rodney Erickson appears to confirm that Penn State had Schultz's notes by at least January 31, 2012 -- a little under a year before the obstruction charges were filed.

The analysis performed by Eileen Morgan made a very strong case that Penn State provided the OAG with the Schultz file in early January 2011 and that Fina utilized it in the grand jury examinations of Curley and Schultz.

However, the falsity of the obstruction charges doesn't stop there.  Not by a long-shot.

Smoke and Mirrors

PSU Policy AD49, effective July 19, 2010, clearly states that the General Counsel (Baldwin) was responsible for answering subpoenas: 


Baldwin "stonewalled" the PSU Three
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."

The entire obstruction of justice and criminal conspiracy ruse is based on the assumption that Baldwin followed through on her responsibilities.  

Baldwin's grand jury testimony (pages 16-21) was clear that she met with each man one-on-one to discuss the subpoena.  

The evidence tells a different story.

Baldwin not only stonewalled the PSU Three about the subpoena, but of all of her knowledge of the evidence relevant to the Sandusky case.  

The Baldwin Stonewall

1998 Incident:  According to the Freeh Report (page 83), Baldwin obtained a copy of the 1998 police report on January 4, 2011.  Based on the consistent lack of recall of the 1998 incident by Paterno, Curley, and Schultz, it is quite obvious she didn't share the report to help prepare them for their appearance. Similarly, Spanier recalled almost nothing about the 1998 incident when he appeared at the grand jury in April 2011. 

2002 Incident:  Subpoena 1179 clearly identified 2002 as the date of the McQueary incident, but when under questioning at their pre-grand jury interviews, neither Curley nor Schultz got the date correct. Curley guessed 2000, while Schultz believed the incident was in 2003.  At Spanier's April 2011 grand jury appearance, he correctly stated 2002, although he said he wasn't sure of the date, but recalled it was about three years after Sandusky retired.

Subpoena 1179:  Baldwin did not advise Penn State officials of their responsibility to search for materials relevant to the subpoena.

Curley: According to Curley's omnibus pre-trial motion, he twice met with Baldwin, once at the Outback Bowl in Tampa, Florida (prior to the issuance of the subpoena) and once in State College, Pennsylvania to discuss his appearance at the grand jury.  Curley's motion makes no mention that Baldwin advised him to search for materials responsive to the subpoena.  

Paterno:  Scott Paterno, son of legendary coach, Joe Paterno, stated that Baldwin resisted providing him with his father's subpoena to testify and didn't provide it until April 2011.  He also stated that Baldwin never asked his father to search for any documents.  The Paterno family later volunteered numerous documents regarding Sandusky to assist in the Freeh investigation.  

Schultz: According to Schultz's omnibus pretrial motion, in December 2010, Baldwin informed him that he was subpoenaed to testify before the grand jury in January 2011.  Schultz agreed to let Baldwin accept service of the subpoena on his behalf. Schultz's affidavit made no mention of Baldwin informing him to search for Sandusky related materials. 

Spanier:  According to Graham Spanier's New Yorker interview, he was not told to search for documents by Baldwin.  

"In that period from January, February, March, she [Baldwin] only gave me a report that these folks are going to the grand jury. She told me somewhere along the way that they were interviewing staff in the football program, and she would be there for all the interviews. But she never told me what was asked about in the interviews, never told me what came up with Curley and Gary Schultz in their testimony."

Motions To Quash: Baldwin never filed a motion to quash the Subpoena 1179 nor did she make any other formal appeal to the OAG for relief.  As such, the OAG was likely expecting many documents to be produced. 

According to the presentment, PSU had only turned over a handful of documents prior to the testimony of Curley, Schultz, and Paterno.

In consideration of the evidence above, Baldwin was either a completely incompetent attorney or she was intentionally undercutting PSU officials.  The circumstances of her hiring appears to point to the latter.

But what do Baldwin's follies have to do with Frank Fina? 

Unwitting Targets

During the January 2011 grand jury, Sandusky case prosecutors Eshbach and Fina didn't ask Curley, Schultz, and Paterno if they were informed about Subpoena 1179 or if they conducted searches to find relevant information. 

Fina: No questions about Subpoena 1179  
Given the allegation that Penn State had turned over just a handful of documents just TWO DAYS before the testimony of PSU officials,  it strains credulity that Fina and Eshbach didn't ask anyone a question about that subpoena or any questions at all about searching for documents related to Sandusky.  The only person asked about documents was Schultz, likely because Baldwin had already passed his notes to them.

Based on the evidence, it is almost certain that the Commonwealth knew Baldwin had not informed Curley, Schultz, and Paterno about their responsibilities to gather information in response to Subpoena 1179. 

This is not a case about a bunch of incompetent lawyers, but more likely a case of Fina, Eshbach, and Baldwin collaborating to extract sworn testimony from Penn State officials who had no idea they were targets of the Sandusky investigation.  

More Lies About Emails

Page 23 of the presentment alleges that Penn State did not use its established procedures or personnel to conduct the searches for emails.  The allegations (below) are false, as # 3 and #4 were disproved by the testimony of Penn State employee, John Corro, who works for Security Operations and Services (SOS).

On July 29, 2013, Corro testified (on page 89 and 90) that in April 2011, he recovered the emails based on the searches for Curley, Schultz, and Spanier, then provided them to Baldwin (page 91).  

Corro further elaborated (pages 91 and 92) that he provided three USB keys to Baldwin, one which contained the entire set of emails and two that were of specific searches. 

When asked if he saw Subpoena 1179, like the others, Corro stated had not. He had only seen a few lines of it as part of another document,  but understood that he was searching for information related to the Sandusky investigation.

According to the agreement made at the Spanier GJ colloquy on April 13, 2011, Penn State was ordered to provide the entire history of emails from PSU officials dating back the University's implementation of email (i.e., prior to 1997) for Spanier, Curley, Schultz, and Paterno.   

Due to the system cut-over in 2004, the search for emails responsive to Subpoena 1179 (citing 2002)  required Penn State to access the archived files where Gary Schultz's 1998 and 2001 email files were located.  Corro didn't testify to any issues with accessing the archived files.

Penn State was to provide the full set - everything found -  to the grand jury judge and then a "culled set" specifically related to Sandusky to the OAG. 

Baldwin agreed to provide everything by April 15, 2011.  

No evidence to date identifies the exact date on which Baldwin provided the USB keys to the grand jury judge and/or the OAG, however, the testimony of Corro, and statements by Fina and Eshbach reveal that all of the 1998 and 2001 the emails were in the OAG's possession by April 2011. 

As for Louis Freeh's alleged discovery of the 1998 and 2001 emails...the evidence reveals that it didn't happen.

Summary of Evidence

The bottom line is that Fina, et al, knew that Penn State had indeed used the SOS to gather materials responsive to Subpoena 1179 and that Spanier, Curley, and Schultz were not guilty of obstructing the investigation by failing to turn over information.  To wit:

1. Schultz was retired from Penn State when Subpoena 1179 was served and had no access to the Sandusky file in his old office or to his 1998 and 2001 (archived) emails. According to an affidavit filed by Schultz, he informed Baldwin of the possible existence of the Sandusky file.  Any failure to provide those materials was because of Baldwin, not Schultz. 

2. Spanier did not possess materials responsive to the subpoena. 

3. There has been no evidence provided to date, aside from a reference in Erickson's notebook, that Curley possessed any evidence responsive to the subpoena.

The only other conspiracy to obstruct justice charge is wholly dependent upon the Commonwealth's legally impossible task of proving that Mike McQueary informed Curley and Schultz that a crime was being committed.  

In other words, the Commonwealth has nothing.

And let's face it, if there was any material/inculpatory evidence to be found, Louie Freeh would have put in his report.

Fina vs. Nifong

One of the reasons Durham County DA Mike Nifong was disbarred was for failure to disclose evidence that negated the guilt of the defendants.  Nifong failed to provide the complete results of the DNA tests that concluded two of the three defendants were not involved in the alleged rape of Crystal Mangum and made numerous misrepresentations about the nature of the evidence before the court.  The withholding of evidence was in violation of former Rule 3.8(d) of the Revised Rules of Professional Conduct.  The misrepresentations were in violation of Rule 8.4 (c). 

Fina's case is a bit different than Nifong's, however the same rules of conduct apply.

The fact that the Penn State emails were in the Commonwealth's possession by at least July 2011 (if not April 2011)  is proof that the Commonwealth knowingly lied about Penn State's failure to comply with Subpoena 1179. 

Given that the emails (and the Schultz file) included the date of the 2001 incident witnessed by McQueary, the evidence also proves that Fina, et al, purposely misstated the year of the McQueary incident in order to charge Curley and Schultz with failure to report in November 2011. 

The Sandusky prosecution team of Fina and Eshbach filed numerous documents with the court misrepresenting the date of the Victim 2 incident as March 1, 2002.  It was not until May 7, 2012 that Fina and McGettigan's Motion to Amend the Bill of Particulars to provided the correct date of February 9, 2001.

The evidence shows that Fina, et al, made numerous misrepresentations to the court during the Sandusky proceedings, in initially charging Curley and Schultz, and during Baldwin's grand jury testimony in October 2012.


The evidence regarding Penn State's provision of the email evidence is exactly the type of information that Frank Fina and his cohorts likely feared would be exposed when their "flip" strategy failed.  

While Moulton's investigation didn't highlight it, there is little doubt that his investigative team uncovered the email ruse.  If not for the toxic politics of the Sandusky case -- and the pre-emptive strike by Fina -- AG Kane might have already went public about Fina's deception.

No doubt, there was a "conspiracy of silence" related to the Sandusky case, but not by the people accused of it.

Next: Freeh "Fail"


  1. Great work Ray, as usual. I count on your analyses to help sort through this complicated mess orchestrated by Corbett and his lackeys. If/when they are brought to justice, you, more than anyone, will be owed a debt of gratitude for your tireless efforts to expose their lies and malfeasance.

    1. Thanks for the kind words, Carole. This is a team effort of 1,000s of PSU alumni, families, and friends. I couldn't do this without everyone else's help.

  2. Outstanding work!

    I have one question that keeps nagging at me about the period soon after this case broke. I recall reading that Amendola stated that he interviewed the person that was believed to be the person in the shower the day of the Mike McQ incident and based on that interview he believed that the prosecution was in error on the year. As I recall, that was the first time the year 2001 came up and it came from the defense rather than the prosecution.

    Are you aware of that coming out in the press and who reported it? I have tried to find the article with no luck.

    1. McClatchy.

      No reason to be nagged by this anymore. The prosecution lied about the date being 2002. I'm sure Sandusky recalled the correct year - not because of the Virginia job interview - but because he was "caught" and had to explain his actions to Curley. Then Curley banned him from using the facilities with kids. People tend to remember things like that.

    2. Thanks, I knew I read it but couldn't find it. You'd think if someone witnessed a truly traumatic event in the same year as one of the most traumatic events on US soil, both would be cemented in their memory.

    3. If you're referring to Mike McQueary, his hand written statement to police said 2001 or 2002. Essentially, he was referring to the years he was a GA.

      After a while, years run together. I don't think the shower incident was as traumatic event in the same vein as 9-1-1. 9-1-1 is cemented in history by news coverage and the "where were you when it happened."

      Interestingly enough, I didn't find out about the 9-1-1 attacks until about 6PM that day. I was fly fishing on Penns Creek and got on the water before the attacks occurred. Didn't hear about them until the end of the day until I was around Lewistown PA on my drive back home.

  3. Ray,
    There are obviously plenty of villains in this Sandusky mess. Many jumped on board as an opportunity for them presented itself. I'd like your opinion as to who "quarterbacked" the deception of blaming it on Penn State? Is there one person that could have stopped this and didn't, or led the push forward?

    Thanks for all you do.

    1. Thanks for the kind words. As I have written previously, it seems that Corbett and Surma were quarterbacking the deception. Once Corbett was elected Governor, the investigation gained some steam and Baldwin started to cooperate. Baldwin was hired to stonewall the investigation, but after Corbett decided to go after Spanier, everything changed. The OAG/Fina was trying to pin Spanier to the 2001 incident, but was not successful -- he needed help from Freeh. More on that soon.

  4. Another terrific post Ray!

    No one has done more to expose the truth than you.

  5. I agree a lot of Fina's actions do not appear ethical. I think Curley and Schultz were charged initially to remove them as defense witnesses for Sandusky.

    I can't decide if Baldwin was just inept or if she was helping the OAG, her former employer, and selling Penn State down the river.

    Baldwin should have immediately given a copy of the 1998 Sandusky investigation to the Board and President. Baldwin should have read all the Curley, Schultz and Spanier emails on the thumb drive she was given about April 2011 to understand Penn State's position. Then she should have shared the pertinent emails with the Board.

    I'm not sure you can extrapolate much from Erickson's vague notes.

    Erickson's Jan. 2012 note saying "Notes - Curley + Schultz" may refer to Baldwin's notes when she interviewed them prior to their grand jury testimony. I think it is logical to assume that Baldwin was providing Erickson with a lot of the Sandusky related info.

    Testimony by Schultz's own secretary was that she had "stolen" the Schultz file from his office in Nov. 2011, and did not turn it over to the OAG until about April. That contradicts the idea that Penn State had the Schultz file in Jan. 2012. What Penn State would have had long before Jan. 2012 were the 2001 emails recovered by their computer forensic expert.

    1. Tim,
      As Eileen Morgan and I have pointed out, many of the questions asked at the January 2011 grand jury (of Curley and Schultz) were seemingly based on the Schultz file.

      It is very likely Baldwin removed the file after Schultz told her about it in January 2011 and put back a less complete version right before Schultz was rehired. There seems to be a few items that came up during the preliminary hearing that were not part of the documents Schultz turned over to PSU in June 2012.

      Still checking this out.

    2. Ray,
      You could be right but your scenario would seem to open Baldwin up to charges of evidence tampering and obstruction if she didn't turn the whole file over to prosecutors when she found it in January 2011. That is not so far fetched but still is speculation without more evidence.

      Also consistent with the limited evidence we have is that Schultz was questioned in greater detail by prosecutors prior to his grand jury appearance. The prosecutors would have gotten the info from Schultz himself and known in advance exactly what to ask Schultz about the file.

  6. If this is as bad as it seems is justice being pursued and who is forging ahead?

    1. Justice will prevail. There are court cases and ongoing investigations. People will not rest until the truth is known.