Former Pa. attorney general: Tim Curley, Gary Schultz case a ‘miscarriage of justice’

mdawson@centredaily.comMarch 23, 2014 

A former Pennsylvania prosecutor thinks charges against ex-Penn State administrators Tim Curley and Gary Schultz were a “miscarriage of justice” resulting from the disputed role of in-house university lawyer Cynthia Baldwin.

Walter Cohen, who was acting attorney general in 1995 and a first deputy attorney general from 1989 to 1995, offered a scathing review for the defense lawyers of Curley and Schultz, who wanted to have Cohen testify as an expert witness at a hearing in December. The review, in a signed affidavit, was filed in Dauphin County Court under seal, and it was just unsealed by the judge last week.

Cohen didn’t mince words in his review, saying prosecutors, the judge presiding over the grand jury and Baldwin herself failed Curley and Schultz. He said if it weren’t for those failures, the two wouldn’t have been charged in the first place.

Cohen arrived at his opinion after reviewing a number of documents in the case, such as the grand jury presentments, transcripts, and letters between Baldwin’s lawyer and the lawyers for Curley and Schultz.

“Mr. Schultz and Mr. Curley suffered the complete deprivation of their rights to counsel,” Cohen wrote. “In fact, the harm to them was even worse than if they had no counsel at all. They believed they had an attorney who would protect their interests.

“The result here was a miscarriage of justice that improperly led to criminal charges being placed against two witnesses whose rights were violated.”

According to grand jury transcripts and arguments made by the two men’s lawyers throughout the case, Curley and Schultz believed Baldwin was representing them when they appeared to testify to the grand jury investigating Jerry Sandusky in January 2011.

But the men apparently became targets during their testimonies, and when Sandusky was indicted months later in November 2011, Curley and Schultz were charged with perjury and failure to report abuse properly.

The defense lawyers have asked for the criminal case against their clients to be dismissed because they say Baldwin first violated grand jury secrecy by being present for their testimonies. The defense lawyers charge that Baldwin later violated attorney-client privilege when she testified against them to the grand jury in October 2012.

Baldwin’s lawyer, Charles De Monaco, has said very little publicly, but he has defended Baldwin, a former state Supreme Court justice and former university trustee.

“The suggestion by anyone that Ms. Baldwin did not fulfill her ethical and professional duties to the Pennsylvania State University and its agents and administrators, or testified untruthfully, is untrue,” De Monaco said in December when the issue flared up again after a court hearing.

Here’s how Cohen sees the issues pertaining to Baldwin’s representation:

Baldwin prepped Curley and Schultz ahead of their grand jury appearances, and owed them “loyalty, confidentiality and competent representation.” But Baldwin had a conflict of interest in representing both of them, didn’t get a waiver of the conflict of interest and did not represent them adequately during their grand jury appearances.

The judge supervising the grand jury, Barry Feudale, believed Baldwin was the attorney for Curley and Schultz, but he and the prosecutor in charge should have challenged the joint representation of the two men.

Further, Cohen said, if Baldwin was only representing Penn State, as she has maintained after her role came into question, then she had no business being in the grand jury room, as it was a violation of grand jury rules.

Cohen said he’s seen that judges and prosecutors are vigilant about grand jury secrecy and forbid lawyers who don’t represent witnesses from being in the grand jury room. He posits that Baldwin’s presence at the grand jury shows that either everyone involved believed she represented Schultz and Curley or there was “at least tacit approval” by the prosecutor and judge to overlook the law.

In addition, Cohen said, the pre-testimony interviews that prosecutors and state police had with Schultz and Curley should have been a red flag. Authorities indicated to Baldwin that an incident reported to Schultz and Curley involved the sexual assault of a young boy.

“This was a materially different story than that which Mr. Schultz and Mr. Curley were prepared to tell,” Cohen said. “Ms. Baldwin should have alerted her clients that they were at serious risk of prosecution for perjury and failure to report child abuse, based on the information she received from the prosecutors.

“However, she did nothing to act on this information, with disastrous results for her clients.”

Cohen said that Baldwin should have recognized hostility during those pre-testimony interviews, too, and should have discussed seeking immunity with Curley and Schultz.

Cohen said that the public records show that Baldwin didn’t explain to Curley and Schultz their rights against self-incrimination. If they had invoked the Fifth Amendment, the grand jury testimonies could have stopped, and they would have had more time to consider options.

Cohen also recounted a conversation he had with Feudale on Oct. 22, 2012, that led to his opinion about Curley and Schultz.

Feudale had just wrapped up a discussion with a witness to the statewide grand jury in Harrisburg who was represented by Cohen. Feudale wanted a quick word with Cohen, who he’d known for quite some time.

Feudale told Cohen he would never allow a lawyer into the grand jury room with a witness unless he was sure the lawyer represented the witness. But, because of the secrecy of grand jury proceedings, Feudale couldn’t divulge to Cohen which proceeding he meant.

Cohen figured it was about Curley and Schultz, because Cohen had made critical public comments about prosecutors bringing charges in light of Baldwin’s role.

It wasn’t until sometime later that Cohen realized the timeliness of Feudale’s chat. The day he met with Cohen, Feudale had just had a discussion with Baldwin over her offering testimony to the grand jury where she sat and listened to Curley and Schultz testify more than a year before.

Baldwin testified to the grand jury Oct. 26, 2012.

“This testimony offered by the person who the judge and both witnesses thought was their counsel just compounds the initial injustice that they suffered at the hands of the supervising judge and (the) chief deputy attorney general,” Cohen wrote.

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