The lawyers defending Graham Spanier have asked a judge to dismiss the charges against the former Penn State president, arguing that prosecutors’ evidence in the obstruction and perjury case is based on illegally obtained grand jury testimony from the university’s ex-general counsel.
The defense lawyers' latest salvo to dismantle the long-stalled case came by way of a motion last week to quash the criminal complaint, which accuses the former university president of conspiring to hide abuse allegations against former coach Jerry Sandusky more than a decade ago.
The lawyers for Spanier accused ex-Penn State general counsel Cynthia Baldwin of violating attorney-client privilege when she testified about her confidential discussions with Spanier when she went to the grand jury sometime last fall. Previously, in 2011, she accompanied Spanier when he went to the grand jury and even heard him testify.
“I believed that Ms. Baldwin was representing me during and in connection with the grand jury proceedings and that she was acting in my best interests,” Spanier said in a signed affidavit that accompanied his lawyer’s legal motions. “Ms. Baldwin first told me that I should retain a separate attorney on November 8, 2011, after Sandusky, Schultz and Curley had been charged.
“At no point did I waive my right to confidentiality in my communications with Ms. Baldwin or otherwise waive attorney-client privilege.”
Baldwin’s lawyer, Charles De Monaco, has said Baldwin did nothing wrong.
According to Spanier's lawyers' motion, Baldwin never told Spanier he was subpoenaed to the grand jury, and he went voluntarily to Harrisburg to testify in April 2011.
Furthermore, Spanier’s lawyers said Baldwin never alerted him that his colleagues Tim Curley, then the athletic director, and Gary Schultz, then an administrator, were targets of the investigation. The lawyers said Baldwin should have discerned that because she sat through their testimonies — an issue Curley’s and Schultz’s lawyers are challenging in court as well.
Later, when Baldwin went to the grand jury, Spanier was never alerted so that he could bring up the attorney-client privilege issue, the lawyers said.
Instead, his lawyers contend, prosecutors under then-Attorney General Linda Kelly and Baldwin decided that the attorney-client privilege did not apply and allowed Baldwin to take the stand during the secret proceedings.
“Because of this maneuvering, Dr. Spanier is now in the unfortunate position of litigating the attorney-client privilege after the (c)ommonwealth has already invaded the confidential relationship with his former attorney,” the lawyers wrote.
Spanier’s legal team also asked for the dismissal of the failure to report abuse and child endangerment counts, arguing that the statute of limitations had expired.
The judge presiding over the grand jury proceedings, Barry Feudale, wrote in an court opinion last month that he does not think Baldwin violated attorney-client privilege. Instead, Feudale said, Baldwin testified as approved by Penn State and “in accordance with her responsibilities as an officer of the (c)ourt.”
But, a law professor the Spanier defense team has retained for legal advice said in a signed affidavit that Baldwin violated Spanier’s due process rights and disagreed with Feudale’s opinion.
University of Pennsylvania law professor David Rudovsky said Baldwin should have known there was a conflict of interest by representing Penn State and Spanier. Rudovsky said Baldwin was “absolutely prohibited” from disclosing privileged conversations regardless if she thought there was a crime involved.
The lawyers for Spanier, Curley and Schultz have maintained that their clients are innocent. The men are awaiting a preliminary hearing on obstruction of justice and related charges.
Curley’s and Schultz’s lawyers asked Feudale to throw out the grand jury presentment that outlined the charges, but the judge ruled he did not have jurisdiction to grant such a request. The lawyers also based their arguments that Baldwin violated attorney-client privilege when she testifying against the two men who thought she was representing them when they testified to the grand jury.
Baldwin did not represent former head coach Joe Paterno when he testified to the grand jury.
According to the court papers, Baldwin was put off that Paterno opted to have his own attorney at the suggestion of his son, Scott Paterno.
“Although she said it was Mr. Paterno’s right to have his own counsel, she seemed irritated that he did not trust her to represent him,” Spanier wrote in the affidavit.
Mike Dawson can be reached at 231-4616. Follow him on Twitter @MikeDawsonCDT.