Supreme Court Shoots Down Fina's Blame-Shifting Arguments

Fina's legal team's flimsy blame-shifting arguments didn't gain much traction at yesterday's Supreme Court hearing

By
Ray Blehar
November 21, 2019, 12:19 PM EST, Updated 1:12PM EST

Disgraced former AG and Philly DA prosecutor Frank Fina continued his blame-shifting defense at yesterday's Supreme Court hearing according to coverage by The Legal Intelligencer.

While the headline (i.e., spin) of the story by The Legal alleged the hearing showed "Fault Lines Among P.A. Justices," notpsu.blogspot.com's analysis concluded that the justices were simply giving fair time to arguments put forth by the respective legal counsels. 

The bottom line appears to be that the justices shot down Fina's blame-shifting arguments.



Blame-shift #1:  Bruce Beemer, not Fina, signed the subpoena.

On October 22, 2012, then prosecutor Fina misled Judge Barry Feudale about not questioning then-PSU General Counsel Cynthia Baldwin about issues covered by attorney-client privilege, then later went on the question Baldwin on those issues.   Fina's defense team argued that he should not be held responsible because he was not the signatory on the subpoena for Baldwin's grand jury subpoena.

That argument was quickly dismissed by Justice Max Baer according to The Legal's coverage:

 "Justice Max Baer was quick to disagree with that argument, saying line prosecutors are rarely the ones issuing subpoenas, and if the rule were enforced as strictly as McAndrews recommended it would be easy for prosecutors to get around it.

“This rule would no longer exist,” Baer said. “I hope you have better arguments than that.”

Blame-shift #2:  Judge Feudale should have held a hearing of privilege prior to letting Baldwin testify.

According to the grand jury colloquy on October 22, 2012,  Fina told the court (Feudale) that a hearing on privilege should wait until after Baldwin testified to the grand jury so that her appearance would not become public information.  His concern over keeping Baldwin's upcoming testimony under wraps was because he had just learned that Curley's and Schultz's attorneys had asserted claims of privilege regarding their client's communication with Baldwin. 

Fina obviously knew that Farrell's and Roberto's arguments should be heard before Baldwin was permitted to testify and that only the clients (i.e., Curley and Schultz) can waive privilege.   But instead of going the route of sure defeat, Fina asserted that Penn State University could (and did) waive privilege in the case.

In order to avoid having to argue the issue with Roberto and Farrell before procuring Baldwin's testimony, Fina stipulated to Feudale that he would not delve into discussions held between Baldwin, Curley, and Schultz. 

Instead of owing up to that fact, Fina's legal team asserted it was Feudale's fault for not holding a hearing on waiver of privilege.

Judge Christine Donahue shot that argument down, referring to it as "putting a bunny in the hat" because who could waive privilege was one of the issues discussed at the October 22nd hearing and Fina purposely put the issue on the back-burner in order to procure Baldwin's testimony against Curley, Schultz, and Spanier. 

ODC attorney Amelia Kittredge boiled it down to Fina "wanted this done fast, quick, and in a hurry" and that Fina was "someone who cannot or will not separate right from wrong."

Supreme Court will rule in this case is anyone's guess, however if it is consistent in how it ruled in the Stacy Parks Miller case, then Fina should lose his license for a year and one day because he still refuses to own up for his transgressions and has shown no remorse regarding his actions.