Jim Dey: Is there a criminal defense lawyer in the house? – Champaign/Urbana News-Gazette

With former Penn State football coach and convicted child molester Jerry Sandusky serving the equivalent of a life sentence in prison, the scandal that consumed the university’s football program is essentially over.

But nearly five years after the news of Sandusky’s shocking misconduct broke, the criminal case involving three former high-ranking university officials, including longtime PSU President Graham Spanier, drags on.

Indeed, lawyers still are skirmishing over pre-trial motions. But a defense victory last week raises doubts about how the cases against three defendants — Spanier, former athletic director Tim Curley and former PSU vice president Gary Schultz — will proceed.

In a unanimous ruling, a Pennsylvania appeals court ruled that all three defendants were not properly represented during their grand jury testimony because they believed that the university lawyer advising them was representing them personally.

It turns out while PSU general counsel Cynthia Baldwin advised the trio and was present with them during grand jury questioning, she described herself to a presiding judge as Penn State’s lawyer.

“… I represent the university, solely,” said Baldwin, who later testified to the grand jury about her interactions with Spanier, Curley and Schultz.

But that’s not how the three men saw it.

Asked during his grand jury appearance if he was represented by counsel, Spanier told grand jurors that his lawyer was present.

“Cynthia Baldwin sitting behind me,” he said.

Because of the fiasco surrounding the representation issue, the appellate court dismissed a slew of charges against the defendants, including perjury, obstruction of justice and conspiracy.

The court also quashed the testimony Baldwin gave before the grand jury because of the lawyer/client confidentiality confusion.

Interestingly, Joe Paterno, Penn State’s late legendary head football coach, was subpoenaed along with Spanier, Schultz and Curley to appear before the grand jury. He spurned assistance from Baldwin and hired his own lawyer to advise him.

Paterno was never charged in the case, although an independent investigation led by former FBI Director Louis Freeh concluded that all four men had known about allegations of child abuse by Sandusky for years before his 2011 indictment and failed to take action.

Freeh’s report charged the four displayed a “total disregard for the safety and welfare of Sandusky’s child victims” by remaining silent.

The Pennsylvania attorney general’s office began its investigation of Sandusky in 2009 and, eventually, began to examine two events — one in 1998 and another in 2001.

One involved a police investigation that began after the mother of a young boy complained that Sandusky had used university athletic facilities to take a shower with her son. He was never charged in the case, but sufficient questions were raised that it drew the attention of university officials.

The second incident occurred in 2001, when assistant football coach Mike McQueary saw what he thought was the rape of a young boy in the athletic showers by Sandusky.

McQueary reported what he saw to Paterno and later spoke with Curley and Schultz about it. They met with Spanier but took no action other than to tell Sandusky not to bring young boys to the locker room again.

In their defense, the men said they were told that Sandusky was engaging in questionable “horseplay” with the youth. McQueary insisted he was more candid, indicating that he suspected child rape.

The major fault of university leaders was their stunning failure to report what had happened to legal authorities for a proper criminal investigation. Instead, they apparently tried to handle the matter themselves, conducting an ineffective inquiry based on incomplete information.

Now building on the mishandling of the original investigation is the astounding error that revolves around the university lawyer. Baldwin told the judge she represented Penn State, but advised them each step along the way to the grand jury and then testified herself before the grand jury.

During her testimony, Baldwin, a former member of the Pennsylvania Supreme Court, told the grand jury that Spanier was “not a person of integrity” and had “lied to me.”

Although the misconduct on Baldwin’s part appears to be clear, the trial court affirmed her actions because “Ms. Baldwin represented him as an agent of Penn State.” It also allowed Baldwin’s testimony to stand because she “did not represent Spanier in an individual capacity” and “there was no (confidentiality) privilege.”

The appellate court rejected that finding, holding that Baldwin “was aware of the potential for a conflict of interest” and did “not adequately explain” that she “did not represent” their interests.

Although the vast majority of Sandusky’s sexual misconduct had nothing to do with Penn State, the university was engulfed in the ensuing scandal.

Spanier, Schultz and Curley were all fired. Paterno was forced out of the coaching job he had held for decades, becoming ill soon after and passing away.

Penn State’s football program was put on probation, fined $60 million by the NCAA and forced to give up scholarships. Three years later, the NCAA mostly reversed the penalties.

The university also paid out many millions of dollars in civil damages to Sandusky’s many victims.

Criminal charges still remain against Spanier, Schultz and Curley. But the bulk of the case has been gutted because of the mind-bending and easily avoided confusion over who represented whom.

Jim Dey, a member of The News-Gazette staff, can be contacted by email at jdey@news-gazette.com or at 217-351-5369.

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