The PACN's Grand Jury Abuses -- and More

The Pennsylvania Corruption Network (PACN) uses the grand jury system as a sword and a shield.

By

Ray Blehar 

As mentioned in the PA Corruption Network's Playbook (January 1, 2016), when the PACN feels threatened or that they may be exposed for their own heinous acts, they use the court system to charge others with crimes (deflecting attention away from them).

The cases of the PSU 3 and current PA Attorney General (AG) Kathleen Kane were examples of how the playbook works -- and both cases were instances of using the grand jury system as a sword. 

Conversely, the Sandusky case and some current activities in Centre County show how the PACN uses the grand jury system as a shield.

Secrecy as a Sword

The Kane grand jury leak investigation appears to be the PACN using the system as a sword.

But before explaining that, let's wind back the clock.  

Judge Barry Feudale oversaw the Bonusgate and Sandusky grand juries, while Frank Fina prosecuted the trials.  Both grand juries had issues with leaks to the press, but no "leakers" were ever identified.  And no grand juries were established to investigate the leaks.

The Kane case, however, was an entirely different matter in terms of results.

A grand jury was convened to investigate the leaks.  It moved at lightning speed to quickly find that here was probable cause to charge the AG with contempt for leaking grand jury information, obstruction of justice for orchestrating the leaks, official oppression, perjury (part of the playbook), and false swearing.

However, before the grand jury's conclusions were reached, it was being used a sword by -- of course -- leaking damaging information about Kane to the press.   

In September 2014, the existence of the secret grand jury was reported by the Philadelphia Inquirer's was Angela Couloumbus and Craig McCoy.  The column was heavily biased toward Fina's and other former AG officials version of events, including the recitation of part of an irrelevant email, purported to be smoking gun evidence, sent to Kane by Adrian King.

  

Not so ironically, these are the same reporters who were leaked secret court documents by Judge Barry Feudale.

In January 2015, Couloumbus and McCoy again reported of the impending decision by the grand jury to recommend charges of contempt and perjury against Kane.  They were later subpoenaed by Judge Carpenter to testify about the leaks.  The Inquirer stated both would invoke the Shield Law to protect their sources.

Of course, there was no uproar to find out who was leaking to McCoy and Couloumbus -- even though part of the rationale for invoking the Shield Law was because they were exposing the "wrong-doing" of public officials (i.e., Kane).  As if another public official, say Frank Fina of the Philly DA's office or one of his associates there, couldn't have been behind the leaks.

When all was said and done, the investigation by then Montgomery County District Attorney Risa Fetri Vermin found that Kane didn't leak protected grand jury information.

But the damage had already been done to Kane by the PACN's wielding of the grand jury sword.

Secrecy as a Shield

To understand how the PACN uses grand jury secrecy as a shield, the Moulton investigation is instructive.

In 2012, then-AG candidate Kane campaigned that if elected, she would look into the Sandusky matter.   After winning by a landslide, Kane made good on her promise the day she took office.

Given the evidence of Fina's, Baldwin's and Feudale's grand jury chicanery, it's not a stretch to think that they had concerns about what the investigation might uncover.   

As a result, these preemptive strikes followed.

First, in February 2013, Feudale appointed a former AG Corbett appointee, James Reeder, to conduct investigations into the Sandusky leaks and leaks emanating from the grand jury of suspected mobster, Louis A. DeNaples.   It was likely that Feudale did so knowing that Reeder would shield any potentially damaging information from those grand juries from being accessed by the Kane (eventually Moulton) investigation.

Next, in  March 2013, anonymous sources alleged to be former AG attorneys and agents threatened to go public if Moulton's report was overly critical of their investigation or was factually inaccurate.  

 

Moulton Report: Inexplicable delays in obtaining search warrants and identifying victims.

Moulton's Report seemingly went soft on Fina and his cohorts, stating it was within his prosecutorial discretion to use a grand jury to investigate the case.  However, at the press conference announcing the report, Moulton called the delays in obtaining search warrants and other investigative steps to be "inexplicable."

In response, Corbett spokesperson Jay Pagni stated "It was a thorough, thoughtful investigation" that resulted in taking Sandusky off the street. 

But the facts show Corbett was wrong. The investigation wasn't thoughtful or thorough.  The AG's investigation clearly ignored leads that would have taken it to The Second Mile's (TSM) doorstep and to more victims immediately.

According to the evidence in the Moulton Report,  the Pennsylvania State Police (PSP) interviewed Aaron Fisher, Steve Turchetta, Central Mountain High School (CMHS) students F.P and F.A, and volunteer wrestling coach Joseph Miller by January 21st, 2009. All of them told the police that Sandusky's connection to children was TSM.   

Due to various jurisdiction issues and conflicts, the case was then transferred from Clinton County, to Centre County, then to Corbett's AG office in March 2009.

On March 17th, DAG Jonelle Eshbach received the PSP report on the case, but after that, no subsequent action occurred until May 1st, when the AG inexplicably recommended the case be taken up by an investigating grand jury (GJ). 

From May 1, 2009 until January 28, 2011, the investigation steered clear of TSM.  On the 28th, it finally issued a subpoena to the charity -- but only for Sandusky's employment and travel records.  

The GJ didn't issue a subpoena for names of TSM participants (children) until March 24th, 2011.  That delay, hypothetically gave TSM officials ample time to dispose of any incriminating evidence, including (possibly) silencing of the most important witnesses.

Given the evidence above, it is highly probable that the AG was avoiding TSM because whatever was going on inside or around it in Centre County had the potential of causing repercussions in Harrisburg -- and possibly other places.  

The Sandusky grand jury investigation ensured the lid stayed on whatever was happening at the charity.

Lock Down In State College

Until the publication of Don Van Natta's "The Whistleblower's Last Stand," little was known about the alleged anonymous email tip that identified Mike McQueary as a possible witness to Sandusky's abuse.  

The ESPN article revealed the tip was allegedly sent to Centre County DA Stacy Parks Miller on November 3, 2010 -- the day after then-AG Tom Corbett won the gubernatorial election.  

Coincidence?  Likely not.

As noted in Ferman Presser: Lies, Contradictions, and Ethics Violations (January 6, 2016), the PACN includes men, women, prosecutors, judges, and political operatives across the state.

Parks Miller had her share of issues of late, including alleged foot-dragging on the sexual abuse investigation of Christopher Lee, ex parte communications with Judge Bradley Lunsford, and was accused of forging a judge's signature on a court order.    

Fortunately for Parks Miller, the grand jury system bailed her out on the forgery accusation.  On July 31, 2015, whomever the special prosecutor was found there wasn't enough evidence to charge Miller -- and so said the grand jury. 

Just days after the decision, Parks-Miller petitioned to convene an investigating grand jury "to consider at least one unsolved murder, and a recent series of other cases the scope of which cannot be determined without the powers granted to a county investigating grand jury."

Parks Miller's petition stated that unsolved disappearances, corrupt organizations, and drug trafficking cases could be assigned to the grand jury.

Few doubt that the unsolved disappearance reference is to former DA Ray Gricar, who disappeared in 2005.

In 2010, then Centre Daily Times reporter, Sara Ganim, wrote that Parks Miller's office would be conducting a review of the case.  Parks Miller related that she was confident the Bellefonte Police Department (BPD) was actively investigating the case. 

Three years later, the PSP announced it was taking over the case from the BPD.   Now it appears the investigation is being taken out of their hands by the actions of Parks Miller and otherwise protected from an investigation by shuttling the case to another grand jury.

But one has to wonder why the Commonwealth didn't do more sooner about the Gricar disappearance.

Network Connections 

When the Sandusky scandal broke, the media connected the April 2005 disappearance of former DA Ray Gricar to "unanswered questions" about why he didn't charge Sandusky in 1998.   

The reason the media couldn't figure it out was because the Sandusky grand jury presentment omitted that the PA Department of Public Welfare (DPW) didn't make an abuse finding.  That decision essentially precluded Gricar from charging, according to retired PSU Detective Ronald Schreffler.  

It is also notable that the presentment didn't even mention that Centre County Children and Youth Services (CC CYS) was involved in the 1998 investigation.  Contrary to what was written in the  Freeh Report about CC CYS recusing itself from the investigation in early May, it remained involved until May 27th. 

In summary, the Sandusky grand jury presentment (and later, the Freeh Report) was used as a shield to hide the failures of the DPW and CC CYS to protect children from Sandusky.   Conversely, its sword came out when it falsely saddled the PSU police and Ray Gricar with the responsibility of deciding the 1998 case.

But, the PACN may have been doing more than hiding the failures of  child protective services when it put forth the false story about 1998.  It was likely protecting itself.

Corbett didn't put Fina
on the Ray Gricar case

When  Ray Gricar went missing on April 15, 2005, then-AG Tom Corbett didn't seem overly concerned about it. 

Instead of Corbett calling on the PSP, the AG's criminal investigation division, or better yet, forming a task force to investigate the case, he let it stay in the care of the little BPD.  Obviously, the BPD could not marshal the resources that the PSP, AG, or a task force could.

About a year later, on February 28, 2006, Corbett announced the formation of a new Public Corruption Unit, rationalizing its need because Pennsylvania had legalized slots and casinos.  Corbett also noted the legislature formed an independent, elected AG's office in 1978 in order to fight public corruption.

In what now seems like a fox watching the hen house move, Corbett named  Frank Fina to be the chief of the new anti-corruption section. 

Interestingly enough, Fina was the AG's head of the criminal investigation division in 2005.  As Fina has been lauded by the media for his prowess, one has to wonder why Tom Corbett didn't tag him to lead the Gricar investigation.  

It gets better.

Some of the others assigned to the Public Corruption Unit were:

Patrick Blessington and Mark Costanza, two attorneys who would eventually be snared in the "porngate" case;

Jonelle Eshbach, who led the Sandusky investigation and then hot footed it out of town; and, 

James Reeder, who Barry Feudale assigned to investigate the grand jury leak cases related to Sandusky and suspected mobster and casino owner Louis A. DeNaples. 

As any prosecutor will tell you, too many coincidences are not a good thing for criminal defendants or for targets of conspiracy and corruption investigations.

While the media scoffed at Kane's suggestion that a corrupt "old boy's network" was out to get her, it appears she may have been right.  All that's missing to prove Kane's case that the network has it out for her is the "smoking gun" evidence.  

I'm willing to wager that evidence will be of the email variety.

Coming Up:

About That Oath

PSU 3 and JUSTICE Won Partial Victory Today

Today's superior court ruling quashed some of the perjury, obstruction, and conspiracy charges for the PSU 3 and noted former AG prosecutor Frank Fina's unethical behavior

By
Ray Blehar

The Pennsylvania Supreme Court released opinions that quashed several charges against former Penn State University (PSU) officials Tim Curley, Gary Schultz, and Graham Spanier.

Baldwin "incompetent to testify" 

The Court ruled that former PSU Counsel Cynthia Baldwin "was incompetent to testify" regarding privileged communications with the PSU 3.  Moreover, the Court ruled that none of the men were "properly represented by Ms. Baldwin" during their grand jury testimony as agents of the University.  

As a result of the violations of Baldwin, testimony given under her representation is not admissible.  As such, the perjury, obstruction of justice, and conspiracy charges against Schultz and Spanier were quashed.  One count of perjury against Curley remained (because he did not raise the issue in his appeal), while the other two counts were quashed.

All three men still face a misdemeanor charge of failure to report child abuse and two felony counts for endangering the welfare of children (EWOC), and one count of conspiracy to endanger the welfare of children.

Today's ruling did not address the merits of the remaining charges, however, they too will eventually be dismissed.   None of the men were mandated reporters in 2001 nor would they be included under the law today even with the revisions to the law after the Sandusky scandal.  

Additionally, the criteria for a conviction on EWOC would almost be impossible for the Commonwealth to prove.

Schultz attorney Tom Farrell noted:  .


"I think the Lynn case creates real problems for the

prosecution.  Further, I think this case is a much weaker 

case than the Lynn case, specifically in terms of whether any

of the defendants were in a position where they had 

supervisory responsibilities over children or over other 

individuals who had supervisory responsibility over

children."  

"PA  Corruption Network" Receives  A  Blow

Former prosecutor Fina called out for "highly improper" conduct in the matter

While today was a partial victory for the PSU 3 - and Penn Staters - it was also a partial victory for justice.

All three opinions noted that Former Chief Deputy Attorney General Frank Fina's conduct was "highly improper" for  improperly compelling Baldwin to testify against the PSU 3 without proper approval and for misleading Judge Feudale.

Feudale: "no babe in the woods."

Apparently the courts tended to ignore the fact that Judge Feudale is "no babe in the woods" either.  He was already tossed off the bench for his lack of judicial objectivity.  

It is also notable that Feudale also had a long history in overseeing child abuse cases.  

The evidence in the PSU 3 case indicates that he and Fina may have suppressed the PSU email evidence in order to charge the PSU 3 with failure to report child abuse and obstruction of justice.  

It's not going out on a limb to think that Feudale turned a blind eye to Fina's misconduct.

PSU explicitly stated to Fina that it did not waive privilege that existed between Baldwin and the PSU 3.   Moreover, Fina told Judge Feudale he would not question Baldwin about privileged matters.  




After making that statement to Judge Feudale, a significant amount of the questioning of Baldwin regarded confidential communications.   

Fina has been lauded by the PA media as a corruption fighter due to his prosecutions of the Bonusgate and Computergate show trials.  

Today, the curtain began to be pulled back.  The PA Corruption Network's abuse of the grand jury system and courts is being exposed. 

In closing, what does that say about those who are questioning AG Kane's selection of Maryland attorney Douglas Gansler to look into all matters around the email evidence?

Next:  Grand Jury Abuses

Feudale Email Exposes Beemer, Others

AG First Deputy, Bruce Beemer's claim that Kane's conduct in releasing private emails was unethical seemingly pales in comparison to other potential misconduct in the case of the PSU 3.  

By
Ray Blehar

In a memo to top attorneys in the Pennsylvania Attorney General's Office (OAG), Bruce Beemer alleged that AG Kathleen Kane had conducted herself unethically for producing the so-called "private emails" of former (bumbling) grand jury judge, Barry Feudale.

In what should come as no surprise to anyone who has closely followed this case, Beemer has his own ethical issues regarding his handling of evidence in the cases of the PSU 3 (i.e., Timothy Curley, Gary Schultz, and Graham Spanier).

And what also should come as no surprise, the evidence involves emails.

Spanier Discovery Request

On September 9, 2014, counsel for Spanier joined a motion by the attorneys for Curley and Schultz requesting discovery of emails between Feudale and Fina regarding his removal as grand jury judge AND any correspondence about the Conspiracy of Silence case.   See below.

On September 9, 2014, the Commonwealth responded and clarified that First Deputy Attorney Bruce Beemer was the "lead prosecutor" since the filing of charges on November 1st, 2012.  Prior to the filing of charges, Senior Deputy Attorney General Jonelle Eshbach was the lead prosecutor on the case and was supervised by Chief Deputy Attorney General Frank G. Fina.

The Spanier filing also revealed the Beemer was instrumental in directing the searches for emails and in responding to requests of the status of the discovery.

3/545 = Playing "hide the ball"

Bruce Beemer:  Kept
playing"hide the ball?"

The Commonwealth's response stated it found 545 emails related to the search terms provided by the defendants and that the majority of the emails dealt with case logistics. Only three dealt with matters that were material to the case.

The "material" emails were from December 16 and 17, 2011 and referenced expanded Information Technology (IT) evidence collection  to be conducted by the PSU IT staff for hard drives, portable devices, and copies of emails from persons of interest.

When the Spanier defense team stated it "strained credulity" that only three emails were found, the OAG indignantly responded that the case prosecutors had been "forthright, cooperative, and direct" and that it "strained credulity" for them to be accused of playing "hide the ball."  

As reported in early 2014, substantial evidence in the case showed that the prosecutors had been playing "hide the ball" all along.  

The Feudale emails simply added to the existing mountain of evidence that has been suppressed in the case of the PSU 3.

Feudale Email

The July 18, 2013 email from Judge Barry Feudale to the Inky's Craig R. McCoy revealed that his email to Frank Fina regarding his removal as judge contained grand jury information.  Given that the email included various rants about AG Kathleen Kane over his removal -- and that Kane had stirred the hornet's nest with the Mouton investigation - there is little doubt it referenced the Sandusky and/or Conspiracy of Silence grand jury.   See below.

AG Kane told reporters that Feudale mistakenly sent emails to Fina at his old email address in the OAG's office and those emails resided on OAG servers.  Feudale's emails were discovered after his removal as a grand jury judge in July of 2013 -- uncovered during the investigation of the Sandusky investigation, conducted by Special Deputy AG, Geoffrey Moulton.  The Moulton Report revealed that emails from the OAG accounts were recovered beginning in November 2013 and continuing into March 2014.

In summary, the OAG's attorneys, including Beemer, Laura Ditka, and James Barker deceived the legal teams of Curley, Schultz, and Spanier regarding the existence of email evidence.

It is extremely rich that Bruce Beemer wrote a memo accusing AG Kathleen Kane of unethical conduct regarding the release of Feudale's so-called "private emails," given his possible misconduct in the PSU 3 case.

Duke Redeaux

Former Durham County, North Carolina, District Attorney Mike Nifong was disbarred for similar misrepresentations to opposing counsel and the court in the Duke Lacrosse case.  

Findings:

94. On December 13, 2006, the Duke Defendants filed a Motion to Compel Discovery: Expert DNA Analysis, detailing their discovery of the existence of DNA from multiple unidentified males on the rape kit items and explaining that this evidence had not been included DSI's written report.  The motion did not allege any attempt or agreement to conceal the potentially exculpatory DNA evidence or test results.   The Motion to Compel Discovery: Expert DNA Analysis was addressed by the Honorable Osmond W. Smith III, Superior Court Judge presiding, at a hearing on December 15, 2006.

95. At the December 15 hearing, both in chambers and again in open court, Nifong stated or implied to Judge Smith that he was unaware of the existence of DNA from multiple unidentified males on the rape kit items until he received the December 13 motion and/or was unaware that the results of any DNA testing performed by DSI had been excluded from DSI's written report.  Nifong stated to Judge Smith in open court:  "The first I heard of this particular situation was when I was served with these reports -- this motion on Wednesday of this week."

96. Nifong's representations that he was unaware of the existence of DNA from multiple unidentified males on the rape kit items and/or that he was unaware of the exclusion of such evidence from DSI's written report, were intentional misrepresentations and intentional false statements of material fact to the Court and to opposing counsel.

Violations of the Code of Ethics

(c) By not providing to the Duke Defendants prior to November 16, 2006, a complete report setting forth the results of all tests and examinations conducted by DSI, including the existence of DNA from multiple unidentified males on the rape kit items and including written or recorded memorializations of Dr. Meehan's oral statements, Nifong:

ii. failed to make a reasonably diligent effort to comply with a legally proper discovery request, in violation of former Rule 3.4(d) of the Revised Rules of Professional Conduct;  

(d) By never providing the Duke Defendants on or after November 16, 2006, and prior to his recusal on January 12, 2007, a report setting forth the results of all tests or examinations conducted by DSI, including the existence of DNA from multiple unidentified males on the rape kit items and including written or recorded memorializations of Dr. Meehan's oral statements, Nifong:

ii. failed to disclose evidence or information that he knew, or reasonably should have known, was subject to disclosure under applicable law, rules of procedure or evidence, or court opinions, in violation of current Rule 3.4(d)(3) of the Revised Rules of Professional Conduct. 

(e) By falsely representing to the Court and to counsel for the Duke Defendants that he had provided all discoverable material in his possession and that the substance of all Dr. Meehan's oral statements to him concerning the results of all examinations and tests conducted by DSI were included in DSI's written report, Nifong made false statements of material fact or law to a tribunal in violation of Rule 3.3(a)(1), made false statements of material fact to a third person in the course of representing a client in violation of Rule 4.1, and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c) of the Revised Rules of Professional Conduct.

(f) By representing or implying to the Court that he was not aware of the existence on rape kit items of DNA from multiple unidentified males who were not members of the lacrosse team and/or that he was not aware of the exclusion of that evidence from DSI's written report at the beginning of the December 15, 2006, hearing, Nifong made false statements of material fact or law to a tribunal in violation of Rule 3.3(a)(1) and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c) of the Revised Rules of Professional Conduct.

Media Defends Corruption

"Duke Lacrosse on Steroids" is an apt description of the Sandusky and Conspiracy of Silence cases because the degree of possible misconduct and the number of players who were likely involved.

Judges, prosecutors, and politicians all have taken part in abusing the so-called system of justice in the Commonwealth.

AG Kathleen Kane, who made good on her promise to investigate the Sandusky investigation, likely had no idea what Fina, Feudale, Beemer, and others feared her investigation would uncover about their misconduct -- and it wasn't pornography.

The media, who should be a watch dog to root out corruption, continues to be a lap dog of the corrupt. Instead of recognizing how officers of the court have compromised the system of justice, it has aligned itself with them.  

To make an analogy, instead of being against the "crack dealers" who sell drugs to children, it has turned against the "undercover cops" who identified them.  As for the children, the media is content to leave them to fend for themselves.

Kane and the corrupt are now engaged in a scorched earth policy in which few will be left unscathed.

Unfortunately, those among the scorched will be every citizen of the Commonwealth who will have the unfortunate circumstance to be abused by this corrupt system of justice.

Feudale Confirms Sham Case vs. PSU 3

Feudale appears to confirm OAG wasn't going to prosecute the case against Spanier, Curley, and Schultz and that he is part of the Conspiracy of Silence that endangers children.

By

Ray Blehar

A July 14, 2013 email from Barry Feudale to the Inky's "corruption defenders" - Angela Couloumbis and Craig McCoy - appears to confirm that the Pennsylvania Office of Attorney General (OAG) prosecutors had no intention of trying former Penn State University (PSU) officials.

During the Sandusky trial, prosecutor Joseph McGettigan told Judge Cleland that "we're not going to try that case."  Feudale's emails shows he also got word that the prosecution of the PSU 3 was unlikely.

As I wrote here, Rod Erickson's notebook confirmed that it was Fina's intention to use the trumped up charges against Timothy Curley and Gary Schultz to get one or both to flip on former PSU President Graham Spanier.

Inky Lied: Feudale Provided Emails to AG

The Philadelphia Inquirer's report that AG Kathleen Kane surreptitiously obtained former Feudale's emails was refuted by evidence in the paper's possession.

By
Ray Blehar

In yet another case of bald-faced lying to protect Pennsylvania's corrupt network of prosecutors and judges, the Inquirer published a knowingly false story that Judge Barry Feudale did not give permission nor did he have knowledge that the Office of Attorney General (OAG) obtained his private emails.

Feudale's July 8, 2013 email to the Inquirer's Craig McCoy proves that the Inky knew Feudale turned over a very critical email to OAG Special Deputy Geoffrey Moulton.

                                          Bumbling Barry Feudale

Feudale fumble: Sent private
emails to Fina's AG account?

The Inky's October 27th story also implied that Kane had obtained the emails through surreptitious methods, but to its credit, allowed that Feudale's office security practices were quite poor.

Feudale provided his computer password to two of his secretaries, plus had it written on a Post It note on a pull out shelf in his desk. Additionally, the absent minded judge also kept the key to his office under the base of the American flag in the grand jury room.

In other words, any number of individuals could have accessed Feudale's office.  But that didn't stop the bumbling judge from acting as if he was the victim of the crime of the century.

"I am outraged by the invasion of my privacy. It shouldn't happen to anybody.  It not only upsets me, it saddens me."

But it gets even worse for Bumbling Barry....

After the paper's latest attempted smear, AG Kane informed the Inky's "corruption defenders" that Feudale's private emails were on the OAG's servers.

Citing yet another anonymous source (likely Frank Fina), the Inky reported that Feudale sent his private emails to a former top prosecutor (likely Frank Fina) in the attorney general's office.

Oops!

But just when you thought things couldn't go any lower,  the Inky, Fina, and others in the corrupt network are questioning the ethics of Kane for not notifying Feudale that he accidentally left a trail of criminal evidence on a government computer system and then exposing his criminal behavior to the public.

Seriously, you can't make this stuff up!

Feudale oversaw the Bonusgate investigation that was also plagued by leaks.  The Sandusky grand jury investigation, which he also oversaw, was plagued by leaks to newspapers.

And now Feudale has been caught leaking secret information again.

Does the Inky really think the public is stupid enough to believe that Kane is the person with a leak problem?

Nifonged Part 3: Freeh "Exposed" Fina's Other Email Problem

When then-Governor Tom Corbett recommended Louis Freeh to conduct the investigation at Penn State, little did he know that the Freeh Report would provide key evidence that helped unveil Fina's email deception.  

By

Ray Blehar

Parts 1 and 2 of the series identified critical facts and evidence (indicating misconduct) that surfaced after Frank Fina's "flip" strategy failed.   Part 3  identifies the information contained in the Freeh Report that revealed Fina and Baldwin misrepresented evidence before the court.

Corbett Endorsed Freeh

Shortly after Penn State announced that it hired Louis Freeh, then-Governor Tom Corbett opined that Freeh was the right man for the job.

"And I think one of the reasons that someone like Mr. Freeh was appointed is because he understands the role of a grand jury investigation, the role of the prosecutors and will work well with the attorney general's office and Attorney General Linda Kelly so that [obstruction of the attorney general's investigation] does not happen."
 

Emails obtained by PSU alumnus Ryan Bagwell clearly show that Freeh's team and the prosecution worked together....but to say that Freeh and AG partnership would "work well" turned out to be wishful thinking.

On July 12, 2012, Louis Freeh's press conference left little doubt in the public's mind -- and much to Corbett's liking -- that there was a Penn State cover up involving Graham Spanier.  Later that day, the man who had taken credit for the firing of Joe Paterno, took to the microphone to take credit for recommending Freeh (at :58). 

"The hiring of Louis Freeh...which I certainly encouraged...in fact, I provided his name..." 

Corbett then rambled on and indicated that obstruction of justice charges may be in store for PSU officials (at 1:20): 


"The prior administration, they made decisions on how they would deliver and what they would deliver...and I'm sure that is the subject of much discussion on the sixteenth floor of Strawberry Square." 

And (at 2:44): 

"Prior people who were in control; now if I limit it to that, I am very disappointed in the lack of forthcoming evidence to the subpoena that was given to them by the attorney general's office."

Freeh overlooked game changing information that
 his team -wittingly or unwittingly - left behind.

Louis Freeh likely relished the opportunity to take credit for "discovering" the evidence that he alleged PSU officials sought to "conceal" from the authorities. 

Given Freeh's alleged impeccable reputation, everyone assumed he was truthful and that the supporting evidence backing up his statements would be in his report.  It wasn't.  


Then Governor Tom Corbett was among those who promoted the report, when (at :25) he stated to "the extent he had read it so far, I think is pretty thorough report."  

Had Corbett read it all the way to the very back, he would have realized the Freeh Report was obviously incomplete by virtue of the five missing exhibits (i.e., #s 1, 4, 7, 8, & 9).  He also likely would have realized that some other exhibits (exposing the Commonwealth's 1998 failure) that should have been excluded or at least redacted, remained in the report.  

It is apparent that Freeh's team, wittingly or unwittingly, left several references in place that exposed potentially "game changing" information regarding the 1998 and 2001 incidents. 

However, the evidence of Fina's email deception was the reference to Subpoena 109.

The Key Evidence: Subpoena 109 

According to the Freeh Report at 88, "the investigators had subpoenaed all emails dating back to 1997 for Spanier, Schultz, Paterno and Curley."   This passage was sourced to end note 457: Grand Jury Subpoena 109, issued on March 24, 2011. 

Note: Former PSU police chief Tom Harmon was also among the individuals targeted by Subpoena 109.  Fina made reference to the alteration of the 1998 police report during his in-camera argument on April 13, 2011.

At the April 13, 2011 grand jury, then PSU Counsel Cynthia Baldwin (at 5) told Judge Feudale that Penn State had been "cooperating all the way through" and did not feel she needed to make a motion to quash the subpoena.  She also stated that the University was working to gather all the requested information.

PSU SOS employee John Corro testified that he was shown some language from the a subpoena in March 2011 and he delivered three USB drives of information to Baldwin in April 2011.  

According to Spanier's July 2012 letter to the Board of Trustees, Baldwin provided a thumb drive his emails - dating back to 2004 - to Judge Feudale at his April 13 appearance.  It is more likely, as I will explain, that the thumb drive contained all of the PSU emails and that a "culled" set had already been provided to the OAG.

The in-camera arguments (for pre-1997 emails) made by OAG prosecutors Fina and Eshbach at the April 13th proceeding revealed they had already received 1998 and 2001 emails -- that would eventually wind up as the "critical evidence" in the Freeh Report.

Fina, Eshbach, and Masked Comments

During former PSU President Graham Spanier's grand jury colloquy,  Frank Fina and Jonelle Eshbach made four different references about emails containing masked comments, metaphors, and other information alluding to Sandusky's crimes on campus.  There was no mention to look for this type of information in documents requested by Subpoena 1179, thus it was not a "routine" request.  In other words, Fina and Eshbach were making the following arguments/requests based emails they already possessed.


1. Fina at 15:

2. & 3. Fina and Eshbach at 20:

4.  Fina at 26:

Fina referenced an alleged 1984 incident involving Sandusky - of which there was no police report or other supporting evidence -- to make the case for the (retroactive) subpoena requiring PSU to search for emails prior to 1997.   

Feudale and Pre-1997 Order

Baldwin, who was excused from the judges chambers during Fina's and Eshbach's in-camera arguments, re-entered and was informed that Fina laid the proper grounds to justify the subpoena for emails prior to 1997. 

Feudale ordered Baldwin to provide the full set of emails, dating "from 1997 back" to him, and a culled set containing just emails related to Sandusky to the OAG.   

Timeline: Freeh & Baldwin Exposed The Deception

Dec 29, 2010:  Subpoena 1179 for Sandusky information related to 2002 incident.


Jan 10, 2011:  PSU turned over handful of materials (likely including "Schultz" file).

Mar 22, 2011: Spanier interviewed by Fina, Eshbach, Rossman, and Sassano.

Mar 24, 2011: Subpoena 109 for emails from 1997 to the present. No motion to quash.

Apr 11, 2011: Due date for emails re: Subpoena 109.

Apr 13, 2011: Baldwin turned over thumb drive to Feudale.  

Apr 13, 2011: Judge Feudale agreed to write order for emails prior to 1997.

Apr 13, 2011: Baldwin promised to turn over all emails by April 15th.

At the outset of the April 13th grand jury, Baldwin explained that PSU had been cooperating with the subpoena but was having difficulty obtaining the emails because the University's administrative computer networks were not centralized.  She also argued (at 5) that the request for emails from 1997 to the present was "much too broad."  

It strains credulity that - in the face of the new, expanded requirement for all emails prior to 1997-  Baldwin would commit to turning around the information in just two days.  Not only did approximately 15 years of email have to be recovered and searched, but it had to be combed through for "metaphors" and possible "allusions" to Sandusky.  Yet all of this would be completed in two days -- according to Baldwin.

Baldwin (at 27) exposed the ex post facto argument for the pre-1997 data when she stated that PSU's IT people were already working to gather and cull out the emails.

The Clincher:  A USB Drive 

While Baldwin's promise to deliver emails in two days was quite incredible, the clincher that the emails had already been gathered was her statement that they would all fit on a single USB drive.

How could Baldwin, who probably knows less about IT than she does about education law (and that says a lot), have known all of the data would fit on a single USB drive?  The answer is she knew they would fit on a USB because she already had it in her possession.   

This also lends credence to the scenario that Dr. Spanier didn't see her turning over his emails to Feudale -- he saw her turn over all the emails to Feudale.   Baldwin and Fina talked their way around that fact at her grand jury appearance in October 2012.  


The evidence presented reveals that Baldwin, Fina, and Esbach were all in on the email deception --  and the railroading of PSU officials.

Fina vs. Nifong

Durham County DA was disbarred, in part, for misrepresenting evidence before the court in the Duke lacrosse case.  Specifically, Nifong falsely represented to the Court that he had turned over the complete DNA reports and other evidence (when he had not).  He was found to have made false statements of material fact or law to a tribunal in violation of Rule 3.3(a)(1),  and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c) of the Revised Rules of Professional Conduct.


In this case, Fina (and Baldwin) likely made numerous misrepresentations and engaged in conduct involving dishonesty and deceit when they pretended that the email evidence related to Subpoena 109 and emails related to the pre-1997 order had yet to be gathered.  It is also likely Fina fabricated the existence of a 1984 incident as a means to justify the search for pre-1997 emails.  The duo of Fina and Baldwin also engaged in similar conduct at Baldwin's grand jury appearance when they talked their way around Baldwin's provision of Spanier's emails to Feudale on April 13, 2011.  See below.

The document excerpt on the left is from the April 13th grand jury, when Fina instructed Baldwin to hand over the complete set of emails to Judge Fuedale.  The document excerpt on the right reflects Fina grand jury questioning Baldwin, implying she didn't hand over emails to the judge.  Baldwin's answer utilizes two technicalities to deny she handed over Spanier's emails. 

1. The thumb drive contained ALL the emails, not just Spanier's.
2. Subpoena 109 and the subsequent order required emails prior to and after 2004.

While she did not commit perjury, her answer was indeed deceptive -- and Fina knew it.

Conclusion

The narrative of a Penn State cover-up was a very poorly executed deception that was attempted by a bunch of amateurs.  Those amateurs included Tom Corbett, Linda Kelly, Frank Fina, Barry Feudale, Jonelle Eshbach, Cynthia Baldwin, and a cub reporter at the Harrisburg Patriot News. 

The flaws in the November 4th 2011 grand jury presentment and in the Patriot News' subsequent Pulitzer Prize winning reporting were rather obvious from the outset. Those flaws were further exposed by the evidence contained in the Freeh Report (and subsequent legal proceedings).  

The Freeh Report was expected to be the definitive account on Penn State's role in the Sandusky case and the emails were supposed to be the evidence proving a cover-up by top PSU officials -- including Joe Paterno.

Instead, the Freeh Report provided the critical piece of evidence that helped to unveil the Commonwealth's and Fina's email deception. 

It's clear that Frank Fina's problems with email aren't just with "Porngate."