PS4RS 4/29/2016 Statement: AG Not Pursuing Appeal

Penn Staters for Responsible Stewardship Calls Case Against Penn State Admins “Ill-Conceived;”  Asks for Formal Second Mile Investigation April 29, 2016 — Penn Staters for Responsible Stewardship (PS4RS) is pleased that the Pennsylvania Attorney General has today recognized the futility of pursuing the most serious charges against the Penn State administrators who were indicted in connection with the Jerry Sandusky case. From the outset, our members have questioned why Penn State administrators have been held responsible for the errors made by administrators of Sandusky's charity, The Second Mile. We hope that the elimination of this distraction, along with the eventual dismissal of the baseless mandatory reporting and child endangerment charges, will turn the conversation towards making Pennsylvania children truly safer. That begins with an official, formal investigation into The Second Mile, the non-profit that was founded by a now-convicted preferential child sexual offender.  And it continues with a closer look at how such an offender could hide in plain sight, escaping the scrutiny of county and state licensed child welfare professionals, child protection advocates, Child Protective Services and ChildLine. Too much time and too many resources have been wasted on an ill-conceived case targeting the wrong institution. This was never a Penn State problem. It is was – and still is – a State of Pennsylvania problem. Penn Staters for Responsible Stewardship (PS4RS), with more than 40,000 members, was formed to promote positive change within the University Board of Trustees, demanding transparent, trustworthy leadership. For further information on PS4RS, please visitwww.PS4RS.org, email ps4rsinfo@ps4rs.org, or go to http://www.facebook.com/PS4RS. Follow PS4RS on Twitter at @PS4RS.

Kane’s office won’t pursue appeal in Spanier, Schultz, Curley charges by Lori Falce The Office of Attorney General is not going to appeal a ruling that dropped some charges against former Penn State leaders. According to an announcement from Attorney General Kathleen Kane, her office will not pursue an appeal of the state Supreme Court ruling from January. That was when a panel tossed the perjury, obstruction and conspiracy counts against former university president Graham Spanier and former vice president Gary Schultz, as well as obstruction and conspiracy against former athletic director Tim Curley. That leaves failure to report suspected abuse and endangering the welfare of children charges against all three and a perjury count against Curley remaining in Dauphin County. The charges stem from the grand jury proceedings against retired Penn State defensive coordinator Jerry Sandusky. “The attorney general accepts the opinion of the Solicitor General and, in response thereto, orders that no further resources of the Commonwealth be expended to pursue a possible appeal,” the OAG said in a release.

Corbett's Grand Jury Lie, Part 3

The Sandusky case was sent to a grand jury so that the investigation would die a slow, secret death

By
Ray Blehar

While the Moulton Report found no direct evidence that former Pennsylvania Attorney General (AG) and one-term Governor Tom Corbett influenced the Sandusky investigation, it absolutely concluded the investigation was slow walked.  

While the report may not have used those exact words, Special Deputy AG Geoffrey Moulton and AG Kathleen Kane instead used "inexplicable" and "inexcusable,' respectively,  to describe the delays in the investigation.

Kane was right.  The delays were "inexcusable."

Moulton was wrong.  The delays were not "inexplicable."

Kane's mistake not to clean house upon taking office resulted in the evidence that would have explained the delays being excluded from Moulton's report.  

That evidence would have shown that Frank "moral responsibility" Noonan's did his best to derail the initial investigation and that when it landed in Corbett's lap, the AG was going to let the Sandusky case die a slow, secret death inside the grand jury.


The Evidence
The following evidence of the investigator's failure to follow leads and conduct routine investigative work was known to Moulton's team but not included in the report.

Failure to Find Victim 9

During the first twenty months of the investigation,  the Pennsylvania State Police (PSP) and OAG were completely reliant upon Aaron Fisher (Victim 1), Dawn Daniels, and Central Mountain High School officials to generate leads.  

As the investigation languished, the AG and PSP failed to investigate the first lead about other victims ever provided by Fisher, who provided the first names of two young men who had highly unusual first names beginning with the letter "S."

Fisher provided that information at his initial interview on November 20, 2008.  

It is unclear whether or not Trooper Cavanaugh included that information in his police report that eventually made its way to the OAG.  However, it is obvious that Cavanaugh didn't attempt to find Victim 9, as that would have required contacting The Second Mile (TSM) to find out the child's last name.

TSM wasn't contacted about the investigation until January 2011. 

According to the Moulton Report, the investigation went cold in March 2010 and nothing happened until October.   Typically, when an investigation goes cold, it is common practice to go back to square one and review all of the existing evidence with the hopes of uncovering something that was missed.  

That didn't happen.

In fact, the investigators did not go back to Clinton County CYS until June 27, 2011.

The search warrant Sandusky's home was approved one week before the investigators visited Clinton County CYS.   On June 22nd, the investigators finally searched Sandusky's home.

According to the trial testimony of AG Agent Anthony Sassano, a list of the names of participants of The Second Mile was found in Sandusky's home.  Victim 9's name, his mother's first name, and his phone number was on the participant list. 

Despite investigators having that considerable evidence that could have led them to Victim 9, they never followed up.

In November 2011, the assistant principal of the boy's school called the hotline after the news of the Sandusky charges hit the papers.

As it turned out, Victim 9 was repeatedly abused while the investigation lagged.  

Failure to Find Victim 10

Along those same lines, one of the lists from Sandusky's PSU office generated the name of Victim 10.  His name was  marked with an asterisk, like some of the other victims who were presented as witnesses at the trial.  

Victim 10, who had a long criminal record,  was incarcerated in at State Correctional Institution - Albion, serving 22 months for robbery until July 2009.  He had a prior arrest in 2004 for burglary. 

Apparently, Noonan's crack team of cops and Corbett's AG investigators didn't think to check for arrest records of former participants of a charity for troubled and at-risk youth.   

Four of the eight witnesses/victims presented at Sandusky trial had arrest records prior to being identified by police.

Those records were not used to find them -- and those facts were excluded from the Moulton Report.

Inexplicable delays?  Certainly not.  

This was turning a blind eye to evidence and not conducting the most basic investigative work.


The Moulton Report revealed that NO investigative activity occurred for ten of the first twenty months of the investigation.  

The Sandusky investigation was put in the grand jury to die. 

And it almost did -- until Corbett decided to use the Sandusky investigation to take out former PSU President Graham Spanier.

Until the Spanier flap, Corbett was letting the clock run out on the investigation

Coming Soon:  Keystone Corruption & Corbett's Politically Motivated Prosecutions

PS4RS Press Statement on PA Superior Court Ruling

PRESS STATEMENT (my emphasis added)

PA Superior Court Ruling Upends Case Against Penn State Admins

January 22, 2016 —— Members of Penn Staters for Responsible Stewardship are pleased with today’s ruling by the Superior Court of Pennsylvania resulting in the dismissal of multiple charges against Penn State administrators. The ruling dismisses the charges of perjury, obstruction of justice and conspiracy against Penn State administrators Tim Curley, Gary Schultz and Graham Spanier. But we are not finished. All we have asked since November 2011 is for due process for everyone involved. Unfortunately, the Penn State Board of Trustees, their hired gun Louis Freeh, and the opportunistic NCAA all ignored the concept that is the very foundation of our country. Each rushed to judgment and in the process impugned loyal, respectable, generous and -- most of all -- innocent men. The court overturned the despicable violation of these men’s constitutional rights by the Office of the Attorney General in collusion with former Penn State trustee and Counsel Cynthia Baldwin. Their actions have cost the state's flagship university hundreds of millions of dollars and caused untold anguish for hundreds of thousands of Penn State alumni and supporters.

It is a travesty that Jerry Sandusky and his use of The Second Mile to prey on at-risk children was not identified sooner by the Pennsylvania Department of Public Welfare. It is inexcusable that he was not promptly indicted by then-Attorney General Tom Corbett and his deputy, Frank Fina. As we have contended from Day One, this was never a Penn State problem. It was – and still very much is -- a state of Pennsylvania problem.

Penn Staters for Responsible Stewardship (PS4RS), with more than 40,000 members nationwide, was formed to promote positive change within the University Board of Trustees, demanding transparent, trustworthy leadership. For further information on PS4RS, please visitwww.PS4RS.org, email ps4rsinfo@ps4rs.org, or go tohttp://www.facebook.com/PS4RS. Follow PS4RS on Twitter at @PS4RS

Old Main's Leaks & Confidentiality Smokescreen

In June 2012, Ken Frazier was cheerleading for the expected "leaks" to be featured on the Today Show and when they occurred, Old Main said little.

By
Ray Blehar

In the most recent round of filings over access to the Freeh Source materials, Penn State's legal team, led by William Odea, argued (at 44) hypothetically that confidentiality must be maintained because if a person applied to be President of the University, and the alumni trustees  "leak the information that that person has applied and it undermines them and that's it."

So, they're afraid "leaks" might undermine someone?  Really?

Let's flash back to June 11, 2011....

Frazier: Cheerleader For Leaks
Former Board of Trustee (BOT) member, Ken Frazier, who was the co-chair of the Special Investigations Task Force (SITF) that oversaw the Freeh investigation, was cheerleading for the leaking of grand jury information to the media.   

The email below, obtained by PSU alumnus Ryan Bagwell, shows Frazier's June 11, 2012 communique to SITF co-chair Ron Tomalis the Freeh group alerting them that the emails (gathered in response to a 2011 grand jury subpoena) might be featured on the Today Show.  

How did Frazier know that grand jury information was going to be leaked?  And who was in on the leak?  

The short list includes Old Main, the PA OAG, the Freeh group, and the NCAA.      

Old Main Stays Silent, Masser Condemns 

At the bottom of the email, it's clear that the University did not decry the leaked information, but instead stated "it cannot comment."   Ironically, it went on to state it would "cooperate" to "determine what happened and ensure personal accountability."

So, did Old Main attempt to find out who leaked the information and hold them accountable?

Of course not -- and the reason was that "elephant in the room."

Old Main and the Board needed Freeh's investigation to justify the firings of Spanier and Paterno.  The leaks helped advance their cause.

The next day, Old Main and the Board got the rest of what they were looking for when Tomalis mentioned that an article from the Philadelphia Inquirer "had the Paterno hook."  In other words, it mentioned that Paterno was referenced in the 2001 email.

At the time the emails were leaked, neither former President Graham Spanier nor the late Joe Paterno had been accused criminal conduct.  After the leaks, papers reported that Spanier (and Paterno had he been alive) could be facing criminal charges.  But there were no sentiments from Old Main about either man being "undermined" by the leaks.

Masser: Begged forgiveness for
his unauthorized statement  

Instead, then BOT vice-chair Keith Masser took the opportunity - based on excerpts of emails - to sway the court of public opinion and convict Spanier, among others, of not informing the proper authorities.

"It now appears like top administrative officials and top athletic officials were involved in making the decision to not inform the proper authorities."

 "From a board standpoint it was Judge Freeh's investigation that found these emails that relate Spanier, Curley and Schultz to the suspected cover-up."

Masser faced calls for his resignation over his statement.  PS4RS opined that Masser's  statement could be interpreted as an official position and used against Penn State in a court of law.  In another email, Frazier apparently echoed that sentiment, opining Masser's statement was "unhelpful." 

Masser later retracted his statement and apologized to the Board. 

Selective Undermining 

The engagement letter between the SITF and Freeh stated that the Freeh, Sporkin, and Sullivan (FSS) group would: "immediately report any evidence of criminality to the appropriate law enforcement authorities and provide notice to the Task Force" and  "communicate regarding its independent investigation performed hereunder with media, police agencies, governmental authorities and agencies, and any other parties as directed by the Task Force."

On April 12, 2012, SITF Co-chair Ron Tomalis sent an email to Freeh and Frazier regarding a recent media report that Graham Spanier was to begin employment in a national security position.  Tomalis sarcastically noted that "someone might not have done their homework."

Freeh responded that "we have done our job in notifying federal prosecutors."

Spanier's clearance was revoked as a result of the information passed to the federal government by Freeh.  

Rewind the clock to December 2011 and you'll see that Freeh didn't abide by the engagement letter when it was determined that Cynthia Baldwin was facing charges of contempt.

Lead Sandusky prosecutor, Frank Fina, sent a letter to then-PSU General Counsel Cynthia Baldwin castigating her for failing to comply with a subpoena concerning Sandusky's retirement information, as well as for a "lengthy history of noncompliance."   

Fina stated that the Sandusky retirement information had just been received on December 19, 2011, nearly a full year after it was originally subpoenaed. 

The December 19th letter from Fina set off a chain of emails between Frazier, Tomalis, Omar McNeil of FSS, and PSU hired attorney, Frank Guadagnino regarding what to do about Baldwin.

Frazier, Freeh and Tomalis: Torched
Spanier, but let Baldwin walk away

Frazier: "I just finished speaking with Frank. I explained why I think there are issues with the incumbent [Baldwin].  He agrees.  I believe he will be providing that advice to Surma when they meet tomorrow.

McNeil:  "any further need for Louie to follow up? I trust that Frank got a clear message from you."

Frazier:  "I think I was very direct. After hearing my position he said he was already thinking in a similar direction. No need for Louie to call." 


Frazier's coded language -- "issues with the incumbent" --  was a reference to the OAG's  "intent to pursue contempt" charges against Baldwin.

On January 16th, 2012, the board held a briefing call about "Strategic Issues Moving Forward."  

The next day, Baldwin announced her retirement.  The media reported her retirement was unrelated to the Sandusky scandal.

It's very likely that FSS asked if they needed to intervene or follow-up because Baldwin was not one of the "targets" of their investigation.  When they asked, the SITF told them to stand down. 

Conclusion

As stated in my last post and as above, the elephant in the room regarding the position of Old Main not to allow review of the Freeh Source materials is that it is all about self-interest.

The Board majority voted, without making a single statement to support their position,  to pay out untold millions of dollars to prevent the legal team of Victim 9 from accessing those documents.  

Undoubtedly, the source materials would prove what most people already know -- the Freeh Report's pre-determined conclusions weren't based on any real evidence.  Tampered evidence, maybe, but not real evidence.

Two lawsuits involving the Freeh documents pit the Board majority and Old Main against opponents who won't and can't be bought.

The smokescreen is lifting.

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."

"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"