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A U.S. Judge declined to intervene in Graham Spanier’s criminal case, issuing a memorandum Friday.

Spanier is accused of conspiring with Penn State administrators Gary Schultz and Tim Curley to cover up Jerry Sandusky’s crimes.

The former Penn State president alleged the Pa. Attorney General’s office undertook the case against him in bad faith. His lawyers cited what they call “uncounselled” grand jury testimony and Cynthia Baldwin’s own testimony to the grand jury.

Baldwin had served as general counsel for Penn State, but Spanier said he believed she was also representing when he appeared before the grand jury.

U.S. Judge Yvette Kane writes that federal intervention only happens in extraordinary circumstances and declined to intervene in this case.

It’s unclear when Spanier and the other defendants will face trial.

 

Jerry Sandusky Appeals for New Trial

A review of the Jerry Sandusky investigation released today by Attorney General Kathleen G. Kane confirmed that the investigation took too long because of crucial missteps and inexplicable delays in bringing a serial child molester to justice. The facts in the report show:

  • It took a full year, from March 2009 until March 2010, for the office to recommend charging Sandusky because basic investigative steps were not taken, including searching Sandusky’s home.
  • In March 2010, career prosecutor Jonelle Eshbach circulated a draft presentment that recommended filing multiple charges against Sandusky, based on statements by Victim 1 and other corroborating evidence. But senior leadership at OAG failed to act on that recommendation for five months despite repeated requests from Eshbach and the mother of Victim 1; Eshbach was informed in August 2010 that more victims were necessary for the case to proceed and they were declining to charge Sandusky.
  • Then, in the months that followed, little effort was made to find any more victims or charge Sandusky, and the case was at a complete standstill until a tip was received by the Centre County District Attorney in November 2010.

“This was a full and fair review,” Attorney General Kane said. “The facts show an inexcusable lack of urgency in charging and stopping a serial sexual predator. The report documents that more investigative work took place in just one month in 2011 than in all of either 2009 or 2010.”

Special Deputy Attorney General H. Geoffrey Moulton Jr., working with Attorney General Kane and staff, led the review. Moulton was joined by Special Agent-In-Charge David Peifer, who oversees the Bureau of Special Investigations, including the agents in the Child Predator Section, and Senior Deputy Attorney General Laura Ditka, who has nearly 20 years of experience handling child sexual abuse cases.

“These types of post-action reviews are vitally important,” Moulton said. “Our goal was to provide a factual, unbiased review of this investigation and to identify any ways that law enforcement can do a better job protecting children. Attorney General Kane made it clear to me from the beginning that this review was not about politics. This was about a core function of government – protecting children.”

Moulton’s review found no direct evidence that political directives drove any of the decisions made throughout the course of the investigation. However, the facts and the timeline in the report raise serious concerns regarding decisions made at the very outset of the probe in 2009 and throughout 2010 and 2011, which ultimately delayed the investigation and the presentment of charges. The report’s key findings include:

  • In March 2010, prosecutor Eshbach circulated a draft presentment that recommended filing multiple charges against Sandusky, including involuntary deviate sexual intercourse, a felony. But her pleas for a decision were ignored for five months. (See Appendix G.)
  • In August, five months later, senior leadership at OAG told Eshbach that the case would not proceed without more victims or better corroboration for Victim 1. The report notes that this was the first time in Eshbach’s career that she had submitted a presentment to her supervisors that had not been approved promptly. (See page 53.)
  • The report found further inaction in 2009, and from August to November 2010, noting that, “… when Eshbach reported . . . … that her ‘bosses have directed that we try harder to find any other corroboration for [A.F.],’ little investigative activity apparently occurred. Indeed, once Eshbach submitted the draft presentment in March 2010, the only reported investigative activity before the end of August was the offer to Sandusky … to testify in the Grand Jury. … Not only does there appear to have been no concerted effort to identify additional victims, but no witnesses were interviewed and no subpoenas were served. Nor was there apparently any renewed discussion of searching Sandusky’s residence or checking for earlier allegations of misconduct.” (See pages 129-30.)

“This case sat inactive for months while a predator was on the streets and a victim waited for justice,” Attorney General Kane said. “The Grand Jury presentment, drafted and supported by the lead prosecutor, sat on someone’s desk for five months. Only after the lead prosecutor repeatedly pushed for an answer, the presentment was denied. It is unfathomable why there was such a lack of urgency.”

In a response to the report, Eshbach’s attorney wrote that Eshbach continues to believe charging Sandusky in early 2010 was the appropriate course of action (see Responses, Jonelle Eshbach), noting her own experience and that of other prosecutors.

The review suggests that had OAG taken basic measures at the outset of the probe, the issue of charging based on Victim 1’s statements alone would likely have been moot because the additional evidence would have been in hand. These important but delayed steps included searching Sandusky’s house, requesting records from local police and child protective services and seeking information from The Second Mile, among others.

The report notes that OAG did not search Sandusky’s home for more than two years after the office received the case, 21 months after it was suggested by OAG’s lead investigator, and more than one year after Eshbach wrote the first presentment. That search, once conducted, revealed valuable evidence. The report states that, “… the failure to search Sandusky’s residence earlier in the investigation is difficult to defend.” (See page 129.)

The report states: “As one expert in the investigation of child molesters put it: ‘The major law-enforcement problem with the use of search warrants in child-sexual-victimization cases is that they are not obtained soon enough.’ That was certainly the case in the Sandusky investigation. The search uncovered, among other things, many photographs of already-identified Sandusky victims, as well as lists of Second Mile campers with handwritten asterisks next to their names. Had the search been conducted in 2009 or 2010, investigators could have used the photographs and names with asterisks to find victims much earlier than they did.” (See page 127.)

“We need to make sure that investigations don’t further victimize the victims. The suggestion that a conviction erases the need to ensure missteps are not made again in the future is seriously flawed,” Kane said. “The failure to search Sandusky’s residence with appropriate urgency alone is both unexcused and inexcusable.”

The review found that the decision to take the case to the Grand Jury was supported by Eshbach and her superiors, and ultimately Attorney General Tom Corbett, and was within their prosecutorial discretion.

The report notes, however, that, “… for long stretches of time before the investigation ramped up in 2011, the resources of the Grand Jury were barely used at all. From the beginning of January 2010 through the end of October 2010, for example, the Grand Jury issued no subpoenas for testimony and only one subpoena for records.” (See page 105.)

“Prosecutors must act quickly and decisively to protect children from continued abuse and do all that is necessary to protect potential victims. While I don’t agree with the decision to go to the Grand Jury, I recognize that prosecutors may differ. However, once you decide to use a Grand Jury, it is imperative that you take full and immediate advantage of its tools,” Attorney General Kane said.

Moulton’s report outlined several recommendations to continue reforming the way child sexual abuse is reported and investigated in Pennsylvania, including the following:

  • OAG should rely more heavily on collaborating with child sexual abuse investigators and children services at the local level where abuse is suspected to have occurred.
  • In high-priority cases, senior management in the Executive Office at OAG should be more involved, direct greater attention and make decisions more quickly.
  • OAG should make child abuse education and outreach a higher priority.
  • The Legislature’s work on child abuse legislation should continue, including further consideration of legislative changes recommended by the Task Force on Child Protection that have not yet been enacted.

For more specific information on these recommendations, see Part Three of Moulton’s Report. (See pages 132 through 141.)

“I want to thank Mr. Moulton for his professionalism and for the public service he has provided,” said Attorney General Kane.

“He fulfilled our mission of bringing the facts about this investigation to the public, despite obstacles such as the need to recover millions of emails prematurely deleted under a retention policy put in place by the Attorney General in 2011,” she said. “The OAG team that assisted Mr. Moulton was led by Special Agent-In-Charge Peifer, Chief Deputy Attorney General Laura Ditka and Deputy Attorney General Marisa Lehr. As well, Senior Supervisory Special Agent Braden Cook developed the program to retrieve the deleted emails.”

Moulton, an Associate Professor Emeritus at Widener University School of Law and a former federal prosecutor, was specifically appointed by Attorney General Kane as Special Deputy Attorney General to conduct this review.

He previously served as First Assistant U.S. Attorney for the Eastern District of Pennsylvania, Chief of Staff and Deputy Special Inspector General for the U.S. Office of the Special Inspector General for the Troubled Asset Relief Program (SIGTARP), and Project Director for the U.S. Department of Treasury’s widely-praised report concerning the failed Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) raid on the Branch Davidian compound near Waco, Texas.

(Source: Office of the Pa. Attorney General)

Today Attorney General Kathleen Kane will announce what her office found out about the handling of the investigation into Jerry Sandusky

The Pennsylvania Supreme Court refuses to hear an appeal from convicted child molester Jerry Sandusky. The high court announced its ruling on a Petition for Allowance of Appeal from Order of the Superior Court, late Wednesday afternoon.

The former Penn State assistant football coach contended that his lawyers went to trial too quickly.  He also felt that state prosecutors improperly made reference to Sandusky’s decision not to testify on his own behalf during the Centre County trial.

Sandusky was sentenced last fall to 30 to 60 years in prison for his conviction on 45 counts of child molestation involving the sexual abuse of 10 juvenile boys.

 

(CNN) — It is when talking about her own children or grandchildren that Dottie Sandusky chokes up with emotion, when the pain of her husband’s conviction for sexually abusing young boys rises to the surface.

“We kept it from the kids as long as we could because we did not know what was going to happen,” said Dottie Sandusky, fighting back tears in an interview with CNN’s Jason Carroll.

“And that was really hard. We had to tell the kids, and the kids questioned their dad. And the kids talked to him and he told them and they believe their dad.”

To Dottie Sandusky, the boys her husband Jerry was convicted of sexually molesting were manipulated. She blames a vast conspiracy, which included the media, for the conviction that sent the 70-year-old former Penn State assistant football coach to prison on a 30- to 60-year sentence.

Jerry Sandusky, who was convicted in 2012 on 45 counts, has maintained his innocence. He is appealing.

The toll on the children in Sandusky clan, however, seems to preoccupy his wife the most.

“It’s been tough on our family,” she said. “Two of our kids have lost their jobs during this time … Our granddkids, some of them are older, old enough to understand what has gone on, and they know who their pop is, what people are saying that he is. But they know who he is. It’s been really hard on them.”

The Pennsylvania trial featured the testimony of eight young men who said they were sexually abused by Sandusky — either groped in a car, soaped by him in the shower or sexually assaulted on a basement waterbed.

“It wasn’t like he just took boys and took them to the shower,” Dottie Sandusky said. “It was when he would work them out, and they would shower and it’s a public place. I mean, there’s people that come and go in the locker room all the time.”

Asked whether she was deluding herself or unwilling to accept the truth, she said: “I’m not that kind of a person and I believe he’s innocent, and if I didn’t believe he was innocent, I would not stand by him.”

The scandal gripped the nation and ended a torturous chapter for the victims and Penn State’s vaunted football program — including the dismissal of the late legendary coach Joe Paterno and one of America’s highest-paid university presidents, Graham Spanier.

It also tarnished Penn State’s celebrated reputation in collegiate athletics and erased part of the Nittany Lions’ impressive record under Paterno from the annals of football history.

John Ziegler, a Sandusky family confidant and documentary filmmaker, believes Penn State administrators railroaded Paterno by firing him in the wake of the scandal and making it virtually impossible for Sandusky to have a fair trial.

“When Joe Paterno was fired, it is a nuclear explosion that goes through the landscape of this case,” Ziegler told CNN. “And because of that, Jerry Sandusky loses all presumption of innocence.”

At the trial of her husband of 37 years, Dottie Sandusky testified that she never heard or saw anything strange or sexual in the basement of their home, where many of the victims say her husband molested them.

The couple’s adopted son, Matt Sandusky, originally denied to a grand jury being abused, but later told his attorney that he, too, was a victim.

In the police interview, Matt Sandusky said that he was molested between the ages of 8 and 15, that he tried to escape from the home and once attempted suicide. Matt Sandusky, who was 18 when he was adopted, had earlier spent time with them in foster care.

“I don’t know whether somebody talked to him, or whether he saw money,” Dottie Sandusky said of their adopted son’s change of story.

Asked whether she wanted to reconcile with her adopted son, Dottie Sandusky — again referring to the family children — said amid tears: “I would like to talk to Matt. I really miss seeing his kids.

They were a part of our lives. And, the hurt that they must be going through. I would love to talk to Matt just to see why and what. What his thoughts are.”

She previously disputed his credibility, referring to Matt’s “many run-ins with the law” in a letter to the judge who was about to sentence her husband in October 2012.

“Matt is extremely disappointed that Dottie and the Sanduskys have decided to smear his character in an attempt to deflect attention from Jerry Sandusky’s heinous crimes,” his lawyers, Justine Andronici and Andrew Shubin, said in a statement to CNN at the time. “Matt has shown tremendous courage and strength. Rather than supporting her son when he made the gut-wrenching decision to come forward and tell the truth about the abuse he suffered at the hands of Jerry Sandusky, Dottie Sandusky has chosen to continue Jerry’s strategy of blaming and attacking the victims, thereby perpetuating the abuse.”

Lawyers for two victims recently responded to Dottie Sandusky’s latest comments.

“Mrs. Sandusky is our best recent example of our deep denial of the reality of child sex abuse,” attorney Marci Hamilton said. “Never underestimate the ability of a pedophile to charm and deceive the adults around him or her.”

Attorney Tom Kline said, “Dott(ie) Sandusky, like her husband, remains remarkably unremorseful towards Jerry Sandusky’s victims. One significant and noticeable difference is her dramatic shift from her cold and detached demeanor as a witness for her husband at his criminal trial to an emotional and distraught spouse, which appears to my eye to be an attempt to convey a sympathetic image for herself and husband — a child molester convicted by overwhelming evidence.”

Since the trial, 26 men have settled claims with Penn State totaling $59.7 million in connection with the Sandusky scandal, the university announced last fall. A few other claims have not yet been settled.

“I think that they could be manipulated by people,” Dottie Sandusky said. “I think a lot of them had financial problems. I just don’t believe their stories. I’m sorry.”

At least every week, she visits her husband in his southwestern Pennsylvania prison.

“He’s in his cell 23 hours a day, Monday through Friday,” Dottie Sandusky told CNN. “And then on weekends its 24 hours. It’s hard. We talk about what he’s doing in prison, what has happened. And I try to cheer him up, but he ends up cheering me up instead of me cheering him up.”

During the interview, Dottie Sandusky showed CNN’s Carroll the basement room of the State College, Pennsylvania, home where some of the victims said they were abused. One accuser said his muffled screams went unheard by her upstairs.

“I would have heard it, yes,” she said of his screams for help.

Dottie Sandusky was read part of letter her husband wrote to CNN. It said, “My biggest hope at the moment is that somehow people will realize how unfair everything was and that judges will have the courage to examine everything.”

She said: “I believe God has a purpose and some purpose will come out of this, that he will see us through.”

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Statement from Attorney General Kathleen Kane:

“Approximately one year ago I appointed H. Geoffrey Moulton Jr. to lead the Office of Attorney General’s (OAG) internal review of the Sandusky child sexual abuse investigation. At that time, I stated that Mr. Moulton would ‘…assist [OAG] in providing a comprehensive and independent examination of the facts surrounding the handling of the Sandusky investigation’ and that, ‘once the facts have been uncovered [OAG] will make these findings available to the public.’

‎”Mr. Moulton has been both thorough and diligent, reviewing and analyzing a substantial documentary record and, despite not having the power to compel testimony through subpoena, interviewing a wide range of witnesses.

“However, certain factors have combined to slow the process, not all of which were anticipated. Chief among them have been significant and time-consuming challenges in obtaining important written records, particularly emails. For reasons that will be described in more detail when the report is made public, until last fall we believed that OAG emails for the relevant time period had been permanently removed from OAG storage systems (pursuant to a then-existing document-retention policy) and were unrecoverable. Since then, we have developed a recovery process that is ongoing.

“Two additional factors will affect the completion and subsequent release of the report. First, because the report will discuss matters occurring before the grand jury that have not previously been made public, the OAG will need judicial approval before releasing the report. We have been working with the assigned grand jury judge on this issue. Second, before the report is made public, due process and fairness require that certain individuals discussed in the report be afforded the opportunity to review and comment on those aspects of the report that pertain to them. In consultation with the supervising grand jury judge, we hope to complete this process as expeditiously as possible.

“The release of the review findings will be determined only by the time necessary to complete a comprehensive review. I remain fully committed to that approach. Pennsylvanians deserve the full and true story, and I will not permit a rush to judgment to interfere with a thorough review.

‎”We are now one full year into the review and it is appropriate to provide Pennsylvanians with an update on its status. I have no plans for additional comment between now and the release of the review findings.”

Local News
01/07/14

Sandusky testifies in effort to keep pension

Jerry Sandusky testified for over two hours Tuesday morning in an effort to keep his roughly $4,900-a-month pension.

The State Employees Retirement System deemed it forfeited in October 2012, when a judge sentenced him to 30 to 60 years in state prison for sexually assaulting boys.

Sandusky’s attorney, Chuck Benjamin, focused on two contracts, one which Sandusky signed in 1969 when he was hired to coach at Penn State and the other in 1999, when he retired.

Benajmin asked, “So, is it fair to say the only contracts you ever had with Penn State were the employment contract from 1969 and the retirement contract from 1999?”

Sandusky replied, “That is correct.” Sandusky testified via video connection from prison. His wife, Dottie, attended the hearing in person.

Act 140, passed in 1978, lists several crimes which a state employee could commit that would result in a pension being forfeited. The Legislature updated that list in 2004 to include indecent assault and involuntary deviate sexual intercourse. Sandusky was found guilty of both during his trial.

His lawyer, Benjamin, argues Act 140 should not apply because it was passed after he began to be vested in the system.

Though Sandusky retired in 1999, lawyers for the retirement system argue he still served as a de facto employee through at least the end of 2008.

During Tuesday’s hearing, lawyer Steven Bizar went into the details of Sandsuky’s retirement agreement and his role at The Second Mile and ongoing affiliation with Penn State.

“The retirement is not really a retirement,” Bizar said. “You suggest that you’re negotiating a breakup with Penn State but you’re asking for a title and a continued relationship.”

Bizar asked Sandsuky about his desire at the time to maintain a “long-term relationship” with Penn State after his retirement. Sandusky said, “Long term relationship is friendships. It’s connections.” He argued he didn’t portray himself as an employee of Penn State after his retirement.

Both sides wanted to call Tim Curley and Gary Schultz to testify. Both men were administrators at the university at the time and are accused of trying to cover up Sandusky’s sex crimes. The men invoked their 5th Amendment rights and did not testify Tuesday.

Dottie Sandusky did not testify or comment after the hearing.

The hearing examiner will make a recommendation to the board overseeing the retirement system. If Sandusky does not agree with that decision, he can appeal further to Commonwealth Court.

Legal analyst Steven Breit discusses the latest in the hearings of Jerry Sandusky and Graham Spanier

Local News
12/18/13

Documents unsealed in Sandusky investigation

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:

Graham Spanier Transcript Part 1

Graham Spanier Transcript Part 2

Cynthia Baldwin Transcript Part 1

Cynthia Baldwin Transcript Part 2

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