Graham Spanier lawyer seeks federal injunction to halt criminal case

mdawson@centredaily.comMarch 31, 2014 

Graham Spanier arrives at his arraignment in Harrisburg, Pa. on Wednesday, November 7, 2012.

CHRISTOPHER WEDDLE — CDT photo Buy Photo

Former Penn State president Graham Spanier wants a federal judge to stop the criminal case against him in Dauphin County because he alleges that a former Pennsylvania prosecutor violated his due-process rights.

Spanier lawyer Elizabeth Ainslie filed for an injunction Monday in U.S. District Court in Harrisburg, accusing former prosecutor Frank Fina of acting in “bad faith” for the way he conducted the grand jury investigation and used former Penn State lawyer Cynthia Baldwin to bring charges against Spanier.

Spanier is on trial for perjury, obstruction of justice, child endangerment and related charges in connection with the Jerry Sandusky scandal. State prosecutors allege Spanier and former colleagues Tim Curley and Gary Schultz conspired to hide abuse allegations against Sandusky more than a decade ago, though their lawyers have maintained their innocence.

Fina was a prosecutor for the state Attorney General’s Office when he subpoenaed Spanier to testify at the grand jury in 2011. Baldwin sat through Spanier’s testimony, and lawyers for Spanier, the prosecution and Baldwin dispute whether she had the right to be there.

In October 2012, Fina brought in Baldwin to testify against Spanier, and early the next month, Spanier was indicted.

“The perjury charge is the linchpin of the prosecution,” Ainslie wrote in the injunction lawsuit. “It provided Fina with a mechanism to use the allegedly perjurious testimony not only to claim perjury but also to claim obstruction through that testimony.

“Moreover, Fina used Spanier’s testimony in April 2011 as an alleged overt act in an attempt to resuscitate otherwise extinguished charges based on an incident that had occurred more than a decade earlier.”

Ainslie declined to comment on the injunction. Messages to Fina and the Attorney General’s Office were not returned Monday.

Here is the chain of events that Ainslie spelled out in the request for the injunction. They all circle back to how Fina used Baldwin.

Spanier testified before the grand jury on April 13, 2011, and Baldwin accompanied him to the proceeding.

In the chambers of grand jury Judge Barry Feudale, Fina told the judge that Spanier, Schultz and Curley had become the subjects of the grand jury investigation because of a theory that the three had covered up what they knew about allegations against Sandusky.

Ainslie said Spanier was never told he was the subject of a grand jury investigation.

Ainslie also said Fina was present to hear conflicting versions of Baldwin’s role.

In the judge’s chambers, Baldwin told the judge that she “solely” represented Penn State. But then in the grand jury room, as Feudale advised Spanier of his rights, the judge referred to Baldwin as “your lawyer” and “your counsel.”

Ainslie said Fina didn’t do anything to correct the judge at that moment, and she said Fina went further when he asked Spanier who his lawyer was.

Spanier replied that he thought Baldwin — “sitting behind me” — was his lawyer, and Fina did not object or interrupt the proceeding.

“Spanier thus reasonably believed that Baldwin was acting as his lawyer and on his behalf in the grand jury,” Ainslie wrote in the lawsuit.

Ainslie said Fina further violated Spanier’s due-process rights when he had Baldwin testify to the grand jury on Oct. 26, 2012.

Fina went outside the narrow focus of questioning that the grand jury judge allowed, Ainslie said, as he asked Baldwin about conversations she had with Spanier when she advised him about his own grand jury testimony preparation. Ainslie said those discussions were protected by attorney-client privilege.

Ainslie said Fina allowed then-Attorney General Linda Kelly to publicly accuse Spanier of being part of a “conspiracy of silence” regarding incidents in 1998 and 2001 during a news conference when she announced the charges against the ex-president.

Ainslie also raised questions over why Fina didn’t charge anyone associated with Sandusky’s charity, The Second Mile. Ainslie said the charity’s CEO, Jack Raykovitz, was given a description of the incident that Spanier was given.

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