"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.   

By

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: 

"LEGAL DOCUMENTS INCLUDING 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.

Conclusion

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"

Part 3: The Media’s Conspiracy of Silence

The media became willing accomplices of Tom Corbett and  the “Old Guard” BOT by not reporting exculpatory facts in the case of the PSU Three

By

Ray Blehar

The story so far:  In February 2014, I wrote Part 1 of this series, highlighting how the Pennsylvania Office of Attorney General (PA OAG) suppressed and manipulated evidence in order to charge former Penn State University (PSU) officials Curley and Schultz with crimes related to the Sandusky scandal.  Two weeks later, in Part 2, I revealed how the PSU Board of Trustees (PSU BOT) engaged with Louis Freeh and various public relations firms to perpetuate a false narrative that former PSU President Graham Spanier and deceased coaching legend, Joe Paterno had concealed Sandusky’s crimes from the public.  

After the release of the Freeh Report, Governor Tom Corbett piled on, condemning the actions of “the prior administration” and “prior people who were in control.”

Corbett stated:  “I’m very disappointed in the lack of forthcoming evidence to the subpoena that was given to them by the Attorney General’s office.” 

The statement was a continuation of a theme of misattribution – or assigning blame or responsibility where it didn’t belong.  It is a fact that Cynthia Baldwin received a letter from the Attorney General in December 2011 that admonished her for failure to comply with grand jury subpoenas.  The letter referenced information that was subpoenaed before Curley, Schultz, and Spanier had any knowledge of the investigation.  Moreover, Schultz was retired at the time of the subpoena, thus had no role in answering that particular request.  Corbett’s July 2012 statement was part of the Commonwealth’s strategy of trying the case in the court of public opinion.  Their allies in the media had the easiest job of all -- do nothing.  Let the public continue to believe that the AG's and Freeh's narratives on the case were not disputed by any of the legal proceedings.  As you will see, they carried out their part magnificently.  

 

Part 3: Keeping the PSU Three Convicted In the Court of Public Opinion

After the release of the Freeh Report, the PA government,  the “old guard” PSU Board of Trustees, and especially the local media did everything in their power to ensure that the PSU Three (Spanier, Curley, and Schultz) remained convicted in the court of public opinion.    

About three months after the release of the Freeh Report and Corbett’s presser accusing the “prior administration” of wrong-doing, the OAG made the Freeh Report "official" by issuing the Conspiracy of Silence presentment (or the Freeh Report-Lite).  The conspiracy and obstruction charges in the presentment were mostly based on the testimony of former PSU Counsel Cynthia Baldwin, who claimed that the PSU Three were uncooperative in responding to the grand jury subpoenas.

Does Fina's in camera argument reveal earlier possession of Schultz e-mails?

Prosecutor Frank Fina's references to e-mails containing metaphors and "illusions" (sic) to Jerry Sandusky, as well as Corro's testimony, provides evidence that the OAG had versions of the 1998 and 2001 e-mails prior to April 13, 2011.

by
Ray Blehar

The statements of prosecutor Frank Fina on April 13, 2011 appear to negate the obstruction of justice charges filed against the three Penn State administrators in the so-called Conspiracy of Silence.

The November 2012, Conspiracy of Silence grand jury presentment (pages 38-39) stated that Spanier, Curley, and Schultz were charged with obstruction of justice for failing to turn over documents and e-mails  that would have been responsive to Subpoena 1179.  Former Attorney General, Linda Kelly, charged that "pertinent emails and other key evidence were never turned over until April 2012, after these men had left their jobs."

However, the April 2011 statements made by Frank Fina during his in camera response to Baldwin's oral motion to quash the subpoena indicate his contemporaneous knowledge of what Louis Freeh called "the most important documents in this investigation."  That reference was to the e-mails between Schultz, Spanier, and Curley that Freeh  lied about making "independent discovery" of when he grandstanded at the July 2012 press conference.

This revelation of Fina's knowledge of the 1998 and 2001 e-mail evidence appears to rip the cover off of the suspected conspiracy/collusion between the OAG and Freeh -- and perhaps PSU and the NCAA.

First and foremost, Fina argument is in support of the subpoenas from 1997 and earlier, thus you can deduce that e-mails from 1998 and forward are already in the state's possession.

In order to bolster his argument, Fina described the characteristics of "metaphors and masked comments" that were found in the e-mails from 1998 and 2001.

• On page 15, lines 1-4 of the Spanier colloquy, Fina discusses those characteristics as follows: "they write off-hand comments, they write masked comments and metaphors may prove very worthwhile for us to review and see if there is any information related to what we are looking for."

• On page 26, lines 6-10, Fina futher justified the request that PSU provide "any of those e-mails, subsets of those e-mails that relate in any fashion, whether they are illusions (sic) or direct statements to Mr. Sandusky, that those would be culled out by the University and provided directly to the Office of Attorney General."  

In 1998, a metaphor -- the word "Coach" -- was used on two occasions to describe an individual involved in the discussion about the Sandusky investigation.  In 2001, the metaphors "individual," "agency," and "other one" were used to describe persons and organizations involved.

It appears, based on Fina's statements, that the e-mail evidence giving rise to the obstruction of justice charges was handed over in March or April of 2011, nearly a year before the OAG and Freeh claimed they initially possessed them.

One of the unwritten rules in this investigation is not to put much stock in the dates provided by the OAG.  Dates appear to be changed in an attempt to explain away the foot-dragging that went down in the Sandusky  investigation.

Baldwin foot-dragging

While it is true that none of the three men provided any e-mail evidence to the OAG, it is anything but certain that they were told to search for the information by then-PSU General Counsel Cynthia Baldwin.  Given that Subpoena 1179 asked for e-mails about the 2002 incident, it is difficult to explain why Spanier, Curley, and Schultz all testified that the incident occurred in different years.

Someone's not telling the truth, and that person is likely Baldwin.

According to the testimony of John Corro of the PSU IT Department,  Baldwin did not approach him about searching for the e-mails requested by the Subpoena until March 2011.  The delay by Baldwin was likely part and parcel with the overall foot-dragging of the Sandusky investigation, which really was not undertaken in earnest until Spanier and Corbett sparred over PSU's budget.

Up until that point, the newly hired PSU lawyer's likely mandate was to stonewall the investigation to ensure nothing about crimes related to Jerry Sandusky were revealed.  Baldwin's history as Vice-Chair and Chair of the PSU BOT, as well as her experience working for former AG LeRoy Zimmerman, and appointment to the bench by former Governor Rendell, indicated that she understood the stakes involved in this investigation.  

Baldwin's and the OAG's best course of action was to avoid prosecuting Sandusky, but it is highly likely that Corbett eventually let his emotions get the best of him and decided to use the arrest of Sandusky to have Spanier fired.

When Corbett "threw the switch" 27 months into the investigation, everyone was put behind the 8 ball in terms of explaining why the arrest took so long.

OAG Foot-Dragging

Psychologist Mike Gillum, in the book Silent No More, stated that Deputy Attorney General Jonelle Eschbach and Trooper Scott Rossman informed him in June 2009 that had received information about a 1998 incident, but would not share details with him.

According to press reports, the police were tipped to the 1998 incident after Sara Ganim gave contact information of the investigators to the mother of Victim 6 in November or December of 2010.  After that, it took police until January 3, 2011 to get the police file from PSU.

Gillum also wrote that Eschbach told him in March 2010 that an arrest was imminent, but then reversed course and said that her boss, Tom Corbett, had nixed the arrest.  In May 2010, six months before Mike McQueary would be interviewed, Eschbach told Gillum other victims had been identified.  The public records state otherwise, considering the "unknown" victim in the McQueary incident reported in November 2010 became Victim 2.

At a June 2010 meeting, Eschbach promised an arrest in the summer - but that never came.  As Gillum had pointedly argued, Corbett was delaying the arrest until after the election.

Gillum appears to be partially right -- the delay was about election and a few more things.

Corbett and the OAG needed that time to ensure that the case against Sandusky not only resulted in a conviction, but they needed to construct a story that would (falsely) blame PSU's lack of cooperation and attempted cover as the reason behind the delay of the investigation.  The story also had to deflect attention away from DPW's and The Second Mile's failures to protect children.

As more facts are revealed, that story is falling apart under its own weight.

From the fantastic story of Agent Sassano determining the date of the McQueary incident by using TV Guides to the factually challenged testimony of janitor Ronald Petrosky, lie after lie is being revealed.

The collapse of this travesty of justice is not a matter of if, but a matter of when.