Documents unsealed this week in the Jerry Sandusky investigation give new details about a legal controversy surrounding the testimony of Cynthia Baldwin, Penn State’s former legal counsel.
Lawyers for former administrators Graham Spanier, Tim Curley and Gary Schultz want a judge to toss out Baldwin’s testimony, saying she violated attorney-client privilege by aiding them with grand jury testimony and then testifying against them after she left the university.
Baldwin’s testimony is key evidence for prosecutors as they try to prove the administrators tried to cover up what they knew about Sandusky.
Baldwin’s attorney, Charles De Monaco, says the former Supreme Court justice fulfilled her obligations to the university and the administrators “at all times.”
On April 13, 2011, Spanier was due to testify before the grand jury. Before he entered the room, there was a conversation between Baldwin and the supervising Judge Barry Feudale.
Feudale asked, “Cindy, just for the record, who do you represent?”
Baldwin responded,”The university.”
Feudale asked, “The university solely?”
Baldwin said, “Yes, I represent the university solely.”
Minutes later, Spanier entered the grand jury room to begin his testimony. Prosecutor Frank Fina asked him, “Sir, you’re represented by counsel today?”
Spanier said, “Yes.”
Fina asked, “Could you just identify counsel?”
Spanier replied, “Cynthia Baldwin sitting behind me.”
Baldwin did not reply.
Former Pennsylvania Attorney General Walter Cohen has followed the case closely.
“Judge Feudale had to believe, because he’s been doing this for many years, he had to believe that she was representing each one of those three individuals when he allowed her to go into the room before the grand jury while they testified,” Cohen said. ”It’s very clear. She could not be there if she didn’t represent them.”
Also newly unsealed in the case is Baldwin’s own testimony before the grand jury, which took place in October 2012.
Before she entered the room, there was a conversation between Judge Feudale and Fina, the prosecutor, in which they discuss Baldwin’s waiver of attorney-client privilege.
“The Commonwealth, at this point, I think, is going to take a very clear position as does Miss Baldwin that she was University Counsel and she was not individually representing those two gentlemen,” said Fina, referring to Curley and Schultz.
Fina went on to say, “There may well be claims down the road by Mr. Farrell (attorney for Schultz), Miss Roberto (attorney for Curley), and perhaps even counsel for Graham Spanier; but, that is, you know, the risk that the Commonwealth is ready to bear because we believe that we are soundly within the waiver.”
The judge later said, “Based on the stipulation, I’m satisfied that that testimony can go froward without any inappropriate inferences to be drawn because I don’t think that the concern that they may have impacts the investigative role with regard to Sandusky and the response of the Office of General Counsel to the various subpoenas and Orders of Court and that is the narrow focus of the testimony.”
Baldwin proceeded to testify about her role as general counsel during the Sandsuky investigation, including conversations with Spanier and the other administrators, and attempts to reply to subpoenas for evidence from the Office of Attorney General.
Toward the end of her testimony, she said of Spanier, “…he is not a person of integrity. He lied to me.”
Cohen described the situation as unusual.
“I have been involved in grand jury work since 1967. And, I’ve never heard of anything like this,” he said. “There’s no halfway lawyer-client privilege, just like you can’t be halfway pregnant. You either are the lawyer or you aren’t the lawyer. If you are the lawyer, you can’t testify against your client under these kinds of circumstances.”
During a hearing Tuesday, lawyers for the former administrators sought to question Baldwin and some expert witnesses in an effort to convince Dauphin County Judge Todd Hoover to block Baldwin from testifying at trial. He didn’t allow that testimony to happen, and is relying on the grand jury transcripts and other documents for now as he considers pretrial issues in the case.
Lawyers may be back in court early next year for another pretrial hearing, but no trial date has been set.
To read the documents, click on the following links: