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.

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."

"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"